UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


^ 


SCHOOL  OF  LAW 
LIBRARY 


i 


i^ 


A  TREATISE 


LAW  OF  HOMICIDE: 


INCLUDING 


A  COMPLETE  HISTORY  OF  THE  PROCEEDINGS  IN  FINDING 
AND  TRYING  AN  INDICTMENT  THEREFOR; 


TOGETHER  WITH 


A  CHAPTER  ON  DEFENCES  TO  HOMICIDE. 


BY 


JAMES   M.   KERR, 

Author  of  "Business  Corporations,"  etc. 


NEW  YORK  AND  ALBANY: 

BANKS   &  BKOTHEES,   LAW  PUBLISHERS. 

1891. 


Copyright,  1891, 
By  banks  &  BROTHERS. 


?^ 


TO 

WALDO    G.    MORSE 

Of  the  New  York  Bar, 

This  Work 

Is  Respectfully  Dedicated 

By  the  Author. 


^^rr.^  r»r\ 


PEEFACE. 


TT  has  been  the  object  of  the  aiithor  to  give  the  busy  prac- 
-^  titioner  a  clear  and  concise  statement  of  the  law  of  homicide 
as  it  exists  in  this  country,  together  with  a  history  of  a  homicide 
case,  in  the  order  of  proceeding,  from  the  arrest  of  the  accused, 
or  the  finding  of  the  indictment.  The  method  of  treatment  has 
been  to  give  a  concise  statement  of  the  law,  with  illustrations 
from  the  more  important  cases,  and  citing  copiously  authorities 
from  the  various  states,  England,  and  Canada.  The  purpose 
being  to  make  this  treatise  a  convenient  manual  wherein  the  busy 
lawyer  will  be  able  to  find  a  discussion  of  at  least  the  most  of  the 
questions  likely  to  be  raised  in  the  course  of  the  trial  of  a  homi- 
cide case,  a  special  effort  has  been  put  forth  to  make  an  exhaus- 
tive collection  of  the  authorities,  with  the  date  of  each  decision 
affixed  thereto.  That  there  should  be  errors  of  omission  and 
commission  is  to  be  expected,  but  great  pains  have  been  taken  to 
guard  against  both,  and  it  is  hoped  that  they  may  be  found  to 
have  been  reduced  to  the  minimum. 

In  the  interest  of  those  who  may  have  occasion  to  use  this 
treatise  the  author  has  put  in  a  reference  to  the  various  con- 
current series  of  selected  reports  and  reporters,  wherein  the  cases 
cited  are  to  be  found  re-reported,  and  one  or  more  of  which  series 
of  reporters  or  selected  reports  is  kept  up  in  almost  every  private 
library  in  the  country.  These  double  citations  are  to  the  Ameri- 
can Decisions ;  American  Reports  ;  American  State  Reports  ;  the 
Lawyers'  edition  of  the  United  States  Reports ;  the  American 
Criminal  Law  Reports ;  Green's  Criminal  Law  Reports ;  the 
Criminal  Law  Magazine ;  Lawson's  Criminal  Defences ;  Moak's 
English  Reports ;  the  English  Common  LaAv  Reports ;  the 
various  reporters  of  the  Wests'  National  Reporter  System;  the 

V 


VI  PREFACE. 

Lawyers'  Keports  Annotated ;  the  American  Law  Register ; 
the  Albany  Law  Journal ;  the  Central  Law  Journal ;  &c.^  Thi.s 
was  clone  at  no  small  outlay,  of  both  time  and  money,  in  order 
to  relieve  the  busy  lawyer  from  the  labor  and  vexation  of  search- 
ing through  his  reporters  and  reports  to  ascertain  whether  a  case 
cited  is  to  be  found  therein.  It  is  thought  that  this  double 
citation  will  be  assistful  to  the  profession  and  meet  with  their 
approval.  To  those  who  may  think  the  double  citations  are  a 
waste  of  both  time  and  space,  the  author  would  suggest  that,  in 
his  humble  opinion,  it  is  better  to  err  on  the  side  of  fulness 
than  on  that  of  brevity,  as  may  be  said  of  those  who  cite  from 
the  current  reporters  of  the  Wests'  system  by  simply  giving  the 
title  of  the  case,  the  name  of  the  court  rendering  the  decision, 
and  the  date  on  which  the  decision  was  handed  down,  leaving 
the  busy  lawyer,  who  wishes  to  refer  to  the  case,  to  wade  at 
random  through  his  reporters. 

For  the  sake  of  facilitating  reference,  the  authorities  are 
arranged  by  states  in  alphabetical  order,  and  the  latest  decision 
in  each  state  given  first ;  the  federal  authorities  follow  the  states, 
the  reports  of  the  Supreme  Court  being  given  first  of  the  federal 
cases,  and  then  the  district  and  circuit  court  reports,  arranged 
alphabetically  by  the  name  of  the  reporter,  ending  with  the 
Federal  Reporter.  The  English  and  Canadian  cases  follow  the 
federal,  and  the  text-books,  where  any  are  cited,  are  the  last  in 
the  foot-note  where  it  is  unbroken  by  a  "see"  or  a  "compare." 

The  index  is  made  very  full  in  order,  if  possible,  to  enable  the 
searcher  to  come  at  once  to  the  point  desired.  To  facilitate 
reference  the  text  is  broken' into  short  })aragraphs,  which  are  pro- 
vided with  appropi'iate  head-liucs  in  bold-faced  type.  The  refer- 
ences, however,  both  in  the  table  of  cases  and  the  index,  are  to 
the  pages  and  not  to  the  sections,  wliilc  in  tlie  table  of  contents 
and  the  analysis  at  the  head  of  each  chapter  the  references  are 
to  the  sections  only.     Neither  time  nor  pains  have  been  spared 

1  No  reference  is  made  to  the  New  York  State  Reporter,  a  series  of  sev- 
eral volumes  and  some  pretensions,  for  the  reason  that  the  publislier  did  not 
see  fit  to  contril)Utf  the  u.se  of  a  set  to  be  consulted  while  making  tlie  dupli- 
cate references. 


PREFACE.  Vii 

to  make  what  was  thought  to  be  a  book  assistful  to  the  pro- 
fession, and  afford  a  convenient  key  to  the  ma^s  of  cases  on  the 
topics  treated  of.  If  the  object  soiight  has  been  attained,  that 
is  sufficient  justification  for  a  new  book  on  this  branch  of  the 

criminal  laAv.  ^.r-T^r, 

JAMES   M.    KERR. 

Boston,  Dec.  15,  1890. 


TABLE   OF   COl^^TENTS. 


CHAPTER  I. 

WHAT   CONSTITUTES  HOMICIDE. 
SECTION  PAGE 

1.  Definition 1 

2.  Causing  cleatli  incUrectlj' 2 

3.  Homicide  by  substituted  agent 4 

4.  Substituting  poison  for  medicine 5 

5.  Infanticide 6 

6.  Same  —  Stating  sex  of  cliild 7 


CHAPTER  II. 

KINDS   OF   HOMICIDE. 

7.  Classes  of  homicide ^ 

8.  Justifiable  liomicide S 

9.  Homicide  in  tlie  execution  of  a  criminal 0 

10.  Homicide  by  an  ofticer  resisted  in  the  execution  of  his  duty 10 

11.  Homicide  to  prevent  a  crime 12 

12.  Same  —  In  preventing  misdemeanor 13 

13.  Same  —  In  protection  of  property,  etc 14 

14.  Homicide  while  protecting  a  federal  justice 15 

15.  Same  —  Release  on  habeas  corpus 15 

16.  Homicide  from  necessity  or  compulsion 16 

17.  Same  —  In  case  of  shipwreck 18 

18.  Same  —  Homicide  to  secure  food 18 

19.  Homicide  committed  in  war 19 

20.  Excusable  homicide 21 

21.  Same  —  Distinction  between  justifiable  and  excusable  homicide  22 

22.  Homicide  in  self-defence 23 

23.  Homicide  by  misadventure 24 

24.  Same  —  Act  must  be  lawful 24 

25.  Same  —  Following  ordinary  occupations 25 

26.  Same—  Administering  medicine 26 

27.  Same  —  Homicide  on  correction 27 

28.  Felonious  homicide 28 

29.  Same  —  Intent  as  an  element 29 

ix 


X  TABLE  OF  CONTENTS. 

CHAPTER  III. 

CRIMINAL   HOMICIDE. 
SECTION  PA6B 

30.  What  constitutes  criminal  homicide 33 

31.  Other  assaults  on  deceased  —  Eflect 35 

32.  Infliction  of  mortal  wound 36 

:W.     Death  accelerated  bj'  accused 37 

34.  Proper  medical  treatment 37 

35.  Same  —  Failure  to  procure  medical  aid 38 

36.  Same  —  Erroneous  medical  treatment 38 

37.  Same  —  Death  from  subsequently  contracted  disease 39 

38.  Liability  for  killing  by  third  person  —  Kioters 39 

39.  Death  by  repeated  acts 40 

40.  Death  caused  through  irresponsible  agent —  Children  and  idiots  42 

41.  Same  —  Letting  loose  savage  animal 42 

42.  Same —  Producing  conviction  by  perjury 43 

43.  Continuing  offences 44 

44.  Same  —  Indictment 45 

45.  Same  —  Jurisdiction 46 

46.  Wound  inflicted  on  high  seas 48 

CHAPTER  IV. 

SUICIDE. 

47.  Definition 49 

48.  Who  may  commit  suicide 50 

49.  Suicide  as  evidence  of  insanity 51 

50.  Same  —  Lucid  interval 52 

51.  Aiding  and  abetting 52 

52.  Accidental  killing 55 

53.  Accessories  before  the  fact 56 

54.  Same  —  Absence  when  act  committed  —  Eff"ect  on  criminality. . .  57 

55.  Abortion  —  Killing  in  producing 57 

56.  Same  —  Causing  pregnant  woman  to  take  poison 58 

57.  Same  —  Supplying  drugs  to  pregnant  woman  without  causing 

her  to  take  them 59 

58.  Attempts  to  commit  suicide CO 

59.  Consent  of  deceased 60 

60.  Punishment  for  suicide 61 

CHAPTER  V. 
Mri:i)i"u. 

C,\.     Definition 65 

62.  Premeditated  design 66 

63.  In  federal  jurisdiction  —  Wliat  killing  is  murder 66 

64.  In  tlie  king's  peace 66 


TABLE   OF   CONTENTS.  XI 


PAGK 


SECTION 

65.  Killing  with  specific  malicious  intent —  Requisite  of  malice  — 

Nature  of  tlie  intent 67 

66.  Same  —  Express  malice 68 

67.  Same  —  Wilful  and  negligent  ouiission  of  duty 68 

68.  Deliberation  and  cooling  time 69 

69.  Same  —  ^ufticiency  of  time —  Question  for  jury 70 

70.  Same  —  Scope  and  object  of  inquiry 70 

71.  Same  —  Adequate  cooling  cime 71 

72.  Same  —  What  sutticient  deliberation 72 

73.  Inadequate  cooling  time "3 

74.  Same  —  Passion  after  intent  formed 7.5 

75.  Same  —  Pretence  of  fighting  .    "5 

76.  Same  —  Feigned  reconciliation "'J 

77.  Malice  implied  by  act  of  killing 76 

78.  Same  —  Interfering  between  combatants 77 

79.  Same  —  Antecedent    quarrel  —  Presumption    therefrom    as    to 

malice '  ^ 

80.  Same  —  Anarchists'  Case  —  Manufacture  of  dynamite  bombs. . .  78 

81.  Same  —  Rule  in  Colorado  and  Louisiana 79 

82.  Same  —  From  means  used  —  Deadly  weapon 80 

83.  Same  —  What  weapons  are  deadly 81 

84.  Same  —  Words  not  justify  use  of  deadly  Aveapon 83 

85.  Same  — Means  calculated  to  produce  death  under  peculiar  cir- 


cumstances 


83 


86.  Same  —  By  administering  poison ^-^ 

87.  Same  —  Shown  by  surrounding  circumstances 84 

88.  Same  —  Quarrel  —  Retreat  and  pursuit 85 

89.  Same  —  Prearranged  quarrel  —  Mutual  malice 86 

90.  Same  —  Renewal  of  controversy 87 

91.  Same  —  Assault  by  one  of  the  slayers 88 

92.  Same  —  Cruel  or  inhuman  treatment 89 

93.  Same  —  Revenge  for  assault  upon  defendant's  son 89 

94.  Same  —  Killing  wife's  paramour ^^ 

95.  Same  —  Mutual  combat '"^ 

96.  Same  —  Killing  after  proposal  of  combat 91 

97.  Same  —  Malice  presumed  to  continue  —  Provocation 1>1 

98.  Killing  ofiicer  in  discharge  of  duty 92 

99.  Killing  one  person  in  attempt  to  kill  another 94 

100.  Homicide  while  committing  felony 9.> 

101.  Homicide  by  gross  misconduct  or  negligence -'6 

102.  Degrees  of  murder  distinguished ''8 

103.  Same  —  First  degree   ^02 

104.  Same  —  Illustrations • 1*^8 

105.  Same  —  Second  degree   1^8 

106.  Same  —  Illustrations ^-^ 

107.  S(ime  —  Other  degrees ^  -■' 

108.  Principals  and  accessories  —  General  rules  as  to  principals 125 

109.  Same  —  Principal  in  the  first  degree 1^' 

110.  Same  —  Principals  in  the  second  degree l'^8 


Xii  TABLE   OF   CONTENTS. 

SECTION  PAGE 

111.  Same  —  Conspirators 129 

112.  Same  —  The  Anarchists'  Case 131 

113.  Same  —  Persons  giving  aid  or  advice 133 

1 U.  Same  —  Accessories  before  the  fact 135 

115.  Same  —  Accessories  after  the  fact 136 


CHAPTER  VI. 

M.VXSLAUGHTKK. 

116.  Definition 139 

117.  Distinction   between  manslaughter  and   murder  —  }»Ioral  cliar- 

acter  of  manslaughter 14:0 

118.  Kinds  of  manslaughter 14^1 

1 19.  Voluntary  manslaugliter  defined 141 

120.  Reducing  homicide  to  manslaughter 142 

121.  Same  —  Rule  in  Alabama  —  First  degree 143 

122.  Same  —  Rule  under  federal  statutes 143 

123.  Same  —  Provocation  causing  passion  —  Wliat  Icinds   of  provo- 

cation sufficient 143 

124.  Same  —  Words  toward  slayer 144 

125.  Same  —  Intoxication  of  deceased 145 

126.  Same  —  Rule  in  Georgia 145 

127.  Same  —  Rule  in  Xew  Yorlc 145 

128.  Same  —  Cooling  time 145 

129.  Same  —  Interview  sought  by  defendant 146 

130.  Same  —  Words  towards  female  relative 147 

131.  Same — Words  spoken  in  defendant's  absence   148 

132.  Same  —  Difficulty  begun  by  defendant  150 

133.  Same  —  Banter  by  deceased 151 

134.  Same  —  Wound  given  by  deceased 151 

135.  Same  —  Killing  in  house  of  deceased 151 

130.     Same —  Strllcing  with  fist  or  weapon 151 

137.  Same  —  Shooting  unarmed  adversary  —  Provocations 152 

138.  Same — Killing  attacl<ing  officer  —  Pursuit  by  officer 152 

139.  Same  —  Cooling  time 153 

140."  Same  —  Instruction  as  to  adequate  cause  —  Passion  as  criterion  153 

141.  Same  —  Acts  of  preparation  —  Preparing  weapon 153 

142.  Same  —  Preventing  defendant's  departure 154 

143.  Same  —  By  the  killing  of  another 154 

144.  Same  —  By  adultery  with  the  slayer's  wife 154 

145.  Same  —  By  criminal  intimacy  with  a  female  relative 155 

1 46.  Mutual  combat 155 

147.  Same  —  Ivjual  terms 156 

148.  Same  —  Previous  malice  not  presumed ' 157 

149.  Tresi)ass 157 

150.  Homicide  in  resisting  arrest 158 

151.  Same  —  Attempted  arrest  l)y  officer  without  warrant 158 


TABLE   OF   CONTENTS.  XIH 

SECTION  '  PAGE 

152.  Homicide  in  making  arrest 159 

153.  Homicide  wliile  conmiitting  an  unlawful  act  less  than  felony. . .  159 

154.  Killing  one  in  attempt  to  kill  another 100 

155.  Homicide  in  preserving  peace 161 

156.  Involuntary  manslaughter  —  What  constitutes  161 

157.  Same  —  How  committed  —  By  gross  carelessness  or  negligence  162 

158.  Same  —  Negligent  use  of  firearms 165 

159.  Same  —  Misconduct  and  negligence  in  steamboat  navigation 166 

160.  Same  —  By  assault 167 

161.  Same  —  By  attempting  abortion 167 

1G2.  Same  —  By  threats  causing  fright 169 

163.  Same  —  By  undue  correction  by  persons  in  authority 169 

164.  Same  —  Upon  person  under  arrest 170 

165.  Same  —  By  obstructing  railroad  track 170 


CHAPTER  VII. 

DEFENCES   TO   HOMICIDE. 

166.  Homicide  to  prevent  a  crime  —  Self-defence 172 

167.  Same  —  Illustrations    174 

168.  Same  —  Defence  by  another 185 

169.  Same  —  Reasonable  belief  in  immhient  danger 187 

170.  Same  —  Grounds  for  belief  of  danger 189 

171.  Same  —  Words  or  threats 190 

172.  Same  —  Former  acts  or  attempts 192 

173.  Same  —  Conspiracy 192 

174.  Same  —  Gestures  and  menaces 193 

175.  Same  —  Possession  of  weapons 1 94 

176.  Same  —  Assault 196 

177.  Same  —  Assault  in  heat  of  passion   198 

178.  Same  —  Provoking  assault 199 

179.  Same  —  The  slayer  must  be  witliout  fault 201 

180.  Same  —  The  killing  must  appear  to  be  the  last  resort  for  safety  203 

181.  Same  —  Duty  to  retreat 205 

182.  Same  —  Right  to  pursue  assailant 206 

183.  Same  —  Defence  of  others 207 

184.  Same  —  Defence  of  property  —  Of  the  habitation 208 

185.  Same  —  Of  other  property 212 

186.  Same  —  Setting  spring-guns   214 

187.  Homicide  in  making  arrest 215 

188.  Homicide  in  resisting  rescue 216 

189.  Homicide  in  resisting  arrest 21(> 

190.  Killing  officer  dispersing  public  meeting  —  The  Anarchists'  Case  218 

191.  Homicide  because  reward  offered  for  death  219 

192.  Homicide  in  defence  of  woman's  chastity 219 

193.  Killing  one  guilty  of  adultery  with  slayer's  wife 221 

194.  Homicide  from  necessity 222 

195.  Same  —  The  Mignonette  Case 223 


xiv  TABLE   OF    CONTENTS. 

SECTION  ^^''^ 

196.  Homicide  from  compulsion  225 

197.  Existence  of  war 225 

198.  Homicide  by  accident  and  mistake 225 

199.  Homicide  while  insane 227 

200.  Same  —  Uncontrollable  impulse 228 

201.  Same  —  Moral  insanity 230 

202.  Voluntary  intoxication  as  a  defence 230 

203.  Same  —  Irresistible  appetite    233 

204.  Same  —  Producing  temporary  insanity 234 

205.  Same  —  Shown  as  aflccting  physical  capability 23G 

20G.     Same  —  Mental  att'cction  must  be  permanent 237 

207.  Same  —  As  aggravating  oflence  —  Illinois  doctrine 237 

208.  Same  —  Texas  doctrine 238 

209.  Same  —  When  considered 238 

210.  Same  —  A  fleeting  intent  and  degree  of  oflence 242 

211.  Same  —  Intoxication  as  a  rebuttal  of  malice  244 

212.  Same  —  As  disproving  criminal  intent 246 

213.  Same  —  Insanity  resulting  from  intoxication 247 

214.  Same  —  rredisposition  to  insanity  from  intoxication 249 

215.  Same  —  Fixed  fi'enzy 249 

216.  Same  —  Delirium  tremens 250 

217.  Same —  Involuntary  intoxication  as  an  excuse  for  crime 251 

218.  Same —  Somnambulism  as  a  defence 251 


CHAPTER  VIII. 

TEVIK   -WITHIN   AVIIICH   PROSECUTION    TO    BE   INSTITUTED. 

219.  Limitation  of  prosecution 255 

220.  Same  —  Statute  must  be  pleaded 256 

221.  Same  —  When  statute  ceases  to  run  257 

222.  In  prosecution  for  murder 257 

223.  In  prosecution  for  manslaughter 258 


CHAPTER  IX. 

JURISDICTIOX. 

224.  Venue 259 

225.  Jurisdiction  as  to  place —  Of  the  state  courts 259 

226.  Same  —  At  common  law 261 

227.  Same  —  Of  the  federal  courts 261 

228.  Offences  commenced  in  one  jurisdiction  and  completed  in  another  263 

229.  Jurisdiction  as  to  the  person 263 

230.  Jurisdiction  as  to  court 264 


TABLE   OF  CONTE>'TS.  XV 


CHAPTER    X. 

PRELIMINARY   EXAMINATION. 
SECTION  PAGE 

231.  Right  to  preliminary  examination   265 

232.  By  whom  preliminary  examination  held 266 

233.  Securing  attendance  and  examining  witnesses 266 

234.  Effect  of  finding  indictment  on  right  to  examination 267 

235.  Where  preliminary  examination  to  be  held 267 

236.  Same  —  Adjournment  of  examination 267 

237.  Same  —  Reducing  testimony  to  writing 2G8 

238.  Waiver  of  preliminary  examination 268 

239.  Warrant  of  commitment 269 


CHAPTER    XI. 

INDICTMENT   AND   INFORMATION. 

240.  Necessity  for 271 

241.  Essentials  of 271 

242.  Matters  pertaining  to  the  finding  of  tlie  indictment 272 

243.  The  caption 274 

244.  Charging  the  offence  —  General  rule 276 

245.  Same  —  Charging  in  two  counts  —  Election 278 

246.  Same  —  As  at  common  law 278 

247.  Same  —  In  the  language  of  the  statute 279 

248.  Same  —  Averment  that  the  act  was  unlawful 280 

249.  Same  — In  abortion 281 

250.  Same  —  Intent  —  Simple  averment  of  intent  to  kill 282 

251.  Same  —  Wilfully,  feloniously,  and  with  malice  aforethought  ...   283 

252.  Same  —  Premeditation  and  delibei'ation 285 

253.  Same  —  Specifying  the  degree 287 

254.  Same — Charging  killing  while  committing  another  offence 288 

255.  Same  —  Means  aud  manner  of  the  homicide  —  Averment  that 

injury  charged  caused  the  death 288 

256.  .Same  —  Averment  of  instrument  or  means  used .■ 289 

257.  Same  —  Alleging  weapons  in  defendant's  hauds 291 

258.  Same  —  Charging  killing  with  gun  or  pistol •  292 

259.  Same  —  Charging  killing  with  bludgeon  or  stick 293 

260.  Same  —  Charging  killing  by  strangulation 293 

261.  Same  —  Charging  killing  by  poisoning  —  Quantity  used 294 

262.  Same  —  Description  of  wound 294 

263.  Time  of  act  causing  death 298 

264.  Time  of  the  death 300 

265.  Averment  of  death 301 

266.  Averring  place  of  the  act  causing  death  —  Under  state  statutes  301 

267.  Same  —  Under  federal  statutes 302 

268.  Averring  place  of  the  death 303 


Xvi  TABLE   OF   CONTENTS. 

SECTION  PAGE 

2G9.  Description  of  deceased  —  Setting  out  Christian  name  —  Idem 

sonans 303 

270.  Averring  defendant's  sanity 307 

271.  Conclusion  of  indictment 307 

272.  Cliarging  more  than  one  homicide  by  the  same  act 308 

273.  Joinder  of  counts  —  Different  modes  of  committing  one  offence  308 

274.  Same  —  Different  oflence 309 

275.  Same  —  Principals  and  accessories 310 

276.  Indictment  of  accessories  and  co-conspirators. 312 

277.  Joint  indictment 314 

278.  Signature  and  indorsement  of  the  indictment 315 


CHAPTER  XII. 

BAIL  IX   HOMICIDE   CASES. 

279.  Common  law  doctrine 316 

280.  American  doctrine    317 

281.  Same  —  Texas  doctrine 319 

282.  Wlien  l^ail  refused 319 

283.  Murder  in  first  degree  —  Bailable  when 320 

284.  Jurisdiction  to  admit  to  bail 321 

285.  Granting  bail  after  indictment 322 

286.  Cause  for  admission  to  bail  —  Sickness  and  disease 322 

287.  What  inquired  into 324 

288.  Proof  of  guilt  —  Wlien  justifies  refusal  of  bail 324 

289.  Same  —  Burden  on  defendant  to  show  guilt  not  evident 325 

290.  Failure  of  jury  to  agree 327 

291.  Bail  after  conviction 328 

292.  Granting  and  refusing  bail  —  Procedure 329 

293.  Same  —  Heview 330 


CHAPTER  XIII. 

CHANGE   OF   VENUE. 

294.  Application  for  change  of  venue 331 

295.  Reasons  for  change  —  Local  prejudice 331 

296.  Same  —  Georgia  doctrine 331 

297.  Affidavits  and  application  —  Weight  and  sufficiency 332 

298.  Same  —  Count er-afiidavits 333 

299.  Filing  indictment  and  transcript  on  change  of  venue 334 


CHAPTER  XIV. 

COUNSEL. 

300.  Counsel  for  prosecution 336 

301.  Counsel  for  defence  —  Common  law  doctrine 337 


TABLE   OF   CONTENTS.  XVll 

SECTION  '                    PAGE 

302.  Same  —  American  doctrine 338 

303.  Same  —  Canadian  doctrine 338 

30-i.     Same  —  Appointment  of  counsel 338 

305.     Argument  of  counsel  prosecuting   340 

30G.     Same  —  Misconduct  in  —  Improper  remarks 341 

307.  Same  —  Abusive  language  —  Exciting  prejudice 343 

308.  Same  —  Misstatement  of  facts  —  Assumptions 344 

309.  Same  —  Commenting  on  failure  to  testify,  etc 345 

310.  Same  —  Discretion  of  court  in  granting  new  trial 346 

311.  Argument  of  counsel  defending 347 

312.  Same  —  Limiting  time  of  argument 348 


CHAPTER    XV. 

ARRAIGNMENT   AND   PLEA. 

313.  Necessity  and  sufficiency 351 

314.  Same  —  Re-arraignment 353 

315.  Waiver  of  reading  indictment  on  arraignment 353 

31G.  Withdrawal  of  plea  —  Discretion  of  court 354 

317.  Same  —  Statutory  provisions •  357 

318.  Same  —  Hearing  of  evidence 357 

319.  Pleading  not  guilty  —  Duty  of  court 357 

320.  Same  —  Nolo  contendere 358 

321.  Pleading  guilty  —  Ascertaining  degree  —  Retroaction  of  plea. . .  358 

322.  Pleading  former  jeopardy 359 

323.  Same  —  What  is  a  sufficient  plea  of 361 


CHAPTER   XVI. 

SERVICE    OF   INDICTMENT. 

324.  Right  to 362 

325.  Incorrect  copy 363 

326.  Time  of  service 363 

327.  Waiver  of  service 364 


CHAPTER    XVIL 

THE   TRIAL. 

328.  Right  to  speedy  trial 365 

329.  Discharge  on  failure  to  try 366 

330.  Fixing  time  of  trial  —  Rights  of  defendant 367 

331.  Postponement  of  trial 368 

332.  Continuance  to  secure  witness 3'^^ 

333.  Same  —  When  refused '^'^^ 

334.  Continuance  to  secure  counsel •  ••  370 


B 


xviii  TABLE   OF   CONTENTS. 


CHAPTER    XVIII. 

JOINT    DEFENDANTS. 
SECTION  PAGE 

335.  Separate  trial 372 

336.  Same  —  Discretion  of  trial  judge 372 

337.  Wlien  demanded 373 

338.  Determining  order  of  trial 373 

339.  "Waiver  of  separate  trial 373 

340.  When  put  on  trial 374 


CHAPTER    XIX. 

THE   TRIAL  —  PRESENCE    OF   THE   DEFENDANT. 

341.  Right  to  be  present 375 

342.  Same  —  Forfeiture  of  right 378 

343.  Same  —  Waiver  of  right 379 

344.  Same  —  Temporary  absence 280 

345.  Presence  during  delivery  of  testimony 381 

34().  Attending  on  inspection 381 

347.  Presence  during  instruction  to  jury 381 

348.  Presence  when  verdict  received 382 

349.  Present  on  motion  for  new  trial  and  arrest  of  judgment 383 

350.  Presence  presumed 384 

351.  Presence  of  counsel 384 


CHAPTER    XX. 

THE  TRIAL  —  THE  JURY. 

352.  Right  to  trial  by  jury 385 

353.  Waiver  of  trial  by  jury 387 

354.  Drawing,  summoning,  and  empanelling  jury 389 

355.  Qualifications  of  jurors 391 

356.  Same  —  Conviction  of  infamous  crime  —  PaTdon 391 

357.  Same  —  When  objection  to  be  taken 392 

358.  Defendant's  list 393 

359.  Challenge  for  cause  —  Implied  bias 395 

360.  Same  —  Actual  bias 395 

361.  Same  —  Prejudice  against  capital  punishment ' 397 

362.  Same  —  Prejudice  against  defence  of  insanity 398 

363.  Same  —  Prejudice  against  "  anarchism  " 398 

36?4.  Same  —  Prejudice  against  circumstantial  evidence 399 

365.  Same  —  Right  to  challenge  —  Re-opening  right 399 

366.  Peremptory  challenges    400 

367.  Swearing  the  jury 401 

H68.  Discliarge  of  jurors 403 


TABLE   OF   CONTENTS.  XIX 

SECTION  .                     PAGE 

369.  Separation  —  During  trial 404 

370.  Same  —  Permission  to  visit  sick  relative 405 

371.  Same  —  During  meals,  etc 40G 

372.  Same  —  Separation  after  retiring 407 

373.  Misconduct  by  or  relating  to  the  jury  during  trial 407 

374.  Same  —  As  to  officer  in  charge 407 

375.  Same  —  Holding  communication  witli  outside  parties 408 

376.  Same  —  Attending  church 409 

377.  Same  —  Use  of  liquor  by  jury  410 

378.  Same —  Discretion  of  trial  judge 411 

379.  Same  —  Conduct  and  words  of  counsel 412 

380.  Same  —  Waiver  of  irregularities 412 

381.  Misconduct  by  or  relating  to  the  jury  after  retiring 412 

382.  Same  —  Law-books  in  jui-y-room 414 

383.  Same  — Examining  things  not  in  evidence 414 


CHAPTER   XXI. 

EVIDENCK  —  PIJEMMIXAIIY. 

384.  Witnesses 416 

385.  Same  —  Sepai'ating  witnesses 417 

386.  Same- —  Number  of  witnesses 417 

387.  Same  —  Competency  of  witnesses   418 

388.  Same  —  Husband  and  wife 419 

389.  Same  —  Co-defendant  where  indictment  nollied   419 

390.  Same  —  Medical  experts   419 

391.  Same  —  Incriminating  testimony 420 

392.  Determining  the  competency  of  evidence 420 

393.  Order  of  proof 421 


.     CHAPTER   XXII. 

EVIDENCE  —  COMPETENCE. 

394.  Evidence  to  prove  the  corpus  delicti 425 

395.  Threats  —  By  deceased 426 

396.  Same  —  Where  defendant  the  aggressor 428 

397.  Same  —  Foolhardy  threats 429 

398.  Same—  Threats  by  third  person 429 

399.  Same  —  Threats  of  secret  societies 430 

400.  Same  —  Communicated  threats 430 

401.  Same  —  Uncommunicated  tlireats 431 

402.  Same  —  Uncommunicated  threats  as  corroborative  evidence 431 

403.  Same  —  Premeditation 432 

404.  Same  —  Over  act 433 

405.  Acts  and  conduct  of  deceased 433 

40G.     Acts  and  conduct  of  accused 434 


XX  TABLE   07   CONTENTS. 

SKCTION  PAGE 

407.  Provocation 435 

408.  Acts  inconsistent  witli  declai-ations 435 

409.  Same  —  Declarations  before  the  act  causing  deatli 43G 

410.  Same  —  Declarations  of  deceased  not  made  in  extremis 438 

411.  Same  —  Declarations  as  to  slayer 4ol) 

412.  Same  —  Dying  declarations  440 

413.  Same  —  Kansas  doctrine ' 444 

414.  Same  —  Scope  of  declaration  —  Illustrations 44G 

4 1."i.     Same  —  Test  of  admissibility  —  Belief  in  impending  death 448 

4  Hi.     Same  —  Stating  a  fact  or  expressing  an  opinion 450 

417.  Same  —  Reducing  declaration  to  writing 452 

418.  Same  —  Time  of  declaration 453 

419.  Same  —  Form  of   455 

420.  Evidence,   character,   disposition,   and   habits    of    deceased  — 

Proof  by  prosecution 456 

421.  Same  —  Proof  by  defence 457 

422.  Same  —  Where  defendant  the  agressor 4G0 

423.  Threats  of  defendant 461 

424.  Same  —  Time  of  threats 464 

425.  Acts  of  defendant —  Before  the  homicide 465 

426.  Same  —  Evidence  of  other  crimes 466 

427.  Same  —  Acts  after  the  homicide  —  Conduct  and  appearance  in- 

dicating mental  condition 469 

428.  Same  —  Flight  or  escape 470 

429.  Declarations  of  defendant  —  Before  homicide 472 

430.  Same  —  Declarations  after  the  homicide  —  Proof  by  prosecution  475 

431.  Same  —  Proof  of  by  defence 476 

432.  Same  —  Declarations  of  an  accomplice 478 

433.  Confessions .^ 479 

434.  Same  —  Knowledge  of  ettect .* 480 

435.  Same  —  To  whom  made 481 

436.  Same  —  Confessions  by  accomplice 482 

437.  Physical'  superiority  of  defendant 483 

438.  Character  and  disposition  of  defendant 483 

439.  Same  —  Peacef ulness  of  character 484 

440.  Same  —  Evidence  of  character  —  Negative  evidence 485 

441 .  Same  —  Reason  for  the  rule 4S7 

442.  Same  —  Defendant's  acts  of  kindness  to  deceased 489 

443.  Use  of  intoxicants 489 

444.  Somnambulistic  condition    490 

445.  Socialistic,  communistic,  or  anarchistic  principles 490 

446.  Same  —  Acts,  threats,  and  declarations  by  confederates  and  co- 

conspirators —  Before  the  homicide 490 

447.  Same  —  Hevolutionary  organizations  —  Adopting  the  writings  of 

others 492 

448.  Acts,  threats,  and  declarations  of  co-defendant  after  homicide. .   493 

449.  Acts,   threats,  and   declarations   of  tiiird   persons   before  the 

homicide 494 

4.50.     Same  —  After  the  hon)icide 496 


TABLE   OF   CONTENTS.  XXI 

SECTION  PAGE 

451.  Same  —  Cries  or  exclamation  of  bystanders 497 

452.  Same  —  Declarations  made  in  the  presence  of  the  accused 498 

453.  Same  —  Declarations  nuide  out  of  presence  of  accused 498 

454.  Previous  relations  existinff  between  deceased  and  defendant  — 

Previous  quarreling  or  ill-feeling —  Proof  by  prosecution. . . .   499 

455.  Same  —  Where  two  jointly  indicted 501 

456.  Same  —  Proof  of  by  defence 501 

457.  Same  —  Showing  business  and  social  relations 502 

458.  Proof  as  to  weapon 503 

459.  Comparison  of  handwriting 505 

460.  Comparison  of  tracts  and  footprints 505 

461.  Same  —  Compelling  defendant  to  make  footprint 506 

462.  Same  —  Experiments  out  of  court  with  footmarl^^s 507 

463.  Evidence  given  at  former  inquiries  into  the  homicide  —  At  coro- 

ner's inquest 507 

464.  Same  —  At  preliminary  examination 508 

465.  Same  —  At  former  trial 509 

466.  Same  —  Defendant's  affidavit  for  continuance 509 

467.  Legal  process  being  served  by  deceased  when  killed 509 

468.  Proof  as  to  motive  —  Immunity  from  prosecution  for  offence 

charged 510 

469.  Same  —  Proof  of  guilt  of  the  crime  charged 511 

470.  Same  —  Prevention  of  testimony  by  deceased 513 

471.  Same  —  Promotion  of  plans  of  secret  organizations 514 

472.  Same  —  Avarice 515 

473.  Same  —  Improper   devotion    to   or  criminal    intimacy    with   a 

female 517 

474.  Same  —  Marital  infidelity 518 

475.  Same  —  Jealousy 519 

476..    Same  —  Revenge 519 

477.  Proof  of  insanity 520 

478.  Same  —  Excessive  use  of  liquors 522 

479.  Same  —  Expert  and  opinion  evidence  —  Experts 523 

480.  Same  —  Skilled  workmen 525 

481.  Same  —  Experts  in  insanity  cases 525 

482.  Same  —  Opinions  of  non-professional  witnesses  as  to  insanity. .  526 

483.  Same  —  Non-experts 627 

484.  Same  —  Experiments 529 

485.  Medical  and  scientific  books  ;;nd  writings 530 

486.  Hearsay  evidence    531 

487.  Impeaching  evidence 532 

488.  Tilings  in  evidence   533 

489.  Aiew  of  premises  by  jury 534 

490.  Presumptions  and  burden  of  proof  —  As  to  the  corpus  delicti  . . .  535 

491.  Same —  As  to  malice 535 

492.  Same  —  As  to  insanity 537 


XXll  TABLE   OF   COIs'TENTS. 


CHAPTEK   XXIII. 

EVIDENCE  —  WEIGHT   AND  SUFFICIENCY. 
SECTION  PAGB 

493.  The  coi-ptts  delicti 539 

494.  Same  —  New  York  rule 541 

495.  Same  —  Proving  alias  dictus 542 

496.  Proving  tlie  venue 542 

497.  Same  —  Doctrine  of  reasonable  doubt 543 

498.  Confessions 543 

499.  Same  —  Nature  and  eftect 545 

500.  Same  —  Must  he  free  and  voluntary 547 

501.  Same  —  Inducement  to  confession  —  Persons  in  authority 549 

502.  Same  —  Confessions  made  wliile  under  arrest 552 

503.  Same  —  Confessions  made  through  fear  of  mob  violence 553 

504.  Same  —  Confessions  procured  through  artifice  and  deception. . .  554 

505.  Same  —  Confessions  to  clergymen 554 

606.  Same  —  Confessions  obtained  by  questioning 555 

507.  Same  —  Confessions  during  examination 555 

508.  Same  —  Confessions  inferred  when    555 

509.  Same  —  The  whole  confession  must  be  taken  together 556 

510.  Testimony  of  accomplice 557 

511.  Proving  self-defence 559 

512.  Proving  alibi 559 

513.  Proving  insanity 560 

514.  Same  —  Sufficiency  of  evidence 562 


CHAPTER   XXIV. 

EVIDENCE  —  1)EFEND.\NT'S   GUILT   UPON   THE   WHOLE  EVIDENCE. 

515.  Direct  evidence 563 

516.  Circumstantial  evidence 564 

517.  Same  —  Possession  of  stolen  property 568 

518.  Same  —  Estal)lishing  facts  by  competent  evidence 568 

519.  Doctrine  of  reasonable  doubt 569 

520.  Same  —  Proof  of  material  facts  charged  —  Instructions 571 

521.  Same  —  The  "  Anarchist's  Case" 572 

622.    Same  —  Proving  alibi 573 


CHAPTER  XXV. 

IN.STRUCTIOXS  TO  THE   JURY. 

523.  What  quostions  nnist  be  submitted  by  the  instructions 575 

524.  Charging  erroneously  or  insuniiieiitly 575 

525.  Instructions  as  to  the  degree  of  murder ...  576 

526.  Instruction  as  to  manslaughter 578 


TABLE   OF   CONTENTS.  Xxiii 

SECTION  "                                                                                                                                  '                  FAOB 

527.  Instructions  as  to  excuse  or  justification 579 

528.  Instructions  as  to  conipeteuey  and  weight  of  evidence 581 

529.  Instructions  as  to  tlie  verdict 581 

530.  Instructions  as  to  puuisluuent 581 

531.  Repetition  of  instruction 582 

532.  Sufficiency  of  instructions  as  to  form 582 

533.  Same  —  Contradictory  and  misleading  instructions  585 

534.  Same  —  Using  tigure  of  speecli 586 

635.     Same  —  Instructions  as  to  form  of  verdict 58G 

536.  Written  instructions 587 

537.  Instruction  as  to  evidence  of  accomplice 588 

538.  Instruction  as  to  reasonable  doubt  and  alibi 588 


CHAPTER   XXVI. 

DISAGREEMENT  AND   RETAIL. 

639.    Discretion  of  trial  court 589 

540.    Same  —  Continuance 589 

CHAPTER  XXVII. 


541.  Time  and  manner  of  rendition 590 

542.  Form  of  verdict  —  Specifying  the  degree  of  guilt 591 

543.  Same  —  Variance  from  indictment  —  Effect 591 

544.  Same  —  Amending  form  of  verdict 591 

545.  Same  —  Assessing  the  punishment 592 

546.  Same  —  Constitutionality  of  statute 592 

547.  Specifically  acquitting  of  higher  or  lower  degree 592 

548.  Naming  the  defendant 593 

549.  Specifying  the  court  sustained 593 

550.  Recommendation  of  mercy 594 

551.  Errors  in  spelling  and  bad  grammar 594 

552.  Same  —  Idem  sonans 595 

553.  Polling  the  jury 596 


TABLE   OF  OASES. 


A. 

Aaron  v.  State,  31,  226,  304,  305,  547. 
Abbott  V.  People,  457,  459,  400,  401, 

462. 
Abernethy  v.  Commonwealth,  462. 
Abranis  v.  Foshee,  168. 
Accident  Ins.  Co.  v.  Crandal,  52. 
Achey  v.  State,  483,  490. 
Acree,  Ex  parte,  317. 
Adams  v.  People,  48,  87,  95,  96,  127, 
160,  201. 
V.  State,  164,  165,  175,  216. 
V.  Utley,  544. 
Adier  v.  State,  355,  356. 
Adwell  V.  Commonwealth,  441. 
Agitone  v.  State,  177. 
Aiken  v.  State,  120,  124. 
Aikin  v.  State,  119,  393,  394. 
Ake  V.  State,  104,  105,  479,  482. 
Akin  V.  State,  475. 
Alexander,  Matter  of,  329. 
V.  Commonwealth,  409. 
V.  People,  583. 

V.  State,  119,  177,  196,  197,  294, 
563,  570. 
Alford   V.   Commonwealth,  307,   411, 
458,  459. 
V.  State,  158,  217. 
Alfred  v.  State,  479,  556. 
Allen,  Ex  parte,  317,  319. 
V.  People,  175. 

V.  State,  87,  178,  388,  429,  558, 
580,  591. 
Allison  V.  State,  143,  372,  373,  442. 
Allsup  V.  State,  119. 
Alston  V.  State,  462,  555. 
Amos  V.  State,  582. 
Andersen  v.  State,  228. 
Anderson,  /n  re,  67,  269. 

V.  State,  81,  105,  230,  255,  256, 
283,  285,  342,  344,  372,  393, 
405,  461,  462,  405,  540,  545, 
555,  582,  583,  584. 


Anderson  v.  Territory,  103. 
Andrews  i'.  People,  544. 

V.  State,  376,  382,  383,  542,  543. 
Angel  I'.  State,  95. 
AngtU  V.  State,  31,  94. 
Ann  r.  State,  30,  31,  96,  97,  169. 
Anon,  54,  169,  304,  316,  320,  351,  404. 
Anthony  t'.  State,  32, 104, 116, 118,280. 
Archer's  Case,  322. 

V.  State,  261,  323. 
Armistead  r.  State,  17,  173,  207, 
Armstead  v.  State,  491,  591. 
Armstrong  v.  Armstrong,  546. 
Arnold  v.  State,  470. 
Arto  V.  State,  178. 
Atkins  V.  State,  17,  80,  149,  426,  429, 

582. 
Atkinson  v.  State,  102. 
Attorney-General  v.  Parnther,  538. 
Austin  V.  Peoi)le,  548. 

V.  State,  547,  552. 
Austine  v.  People,  550,  551. 
Ayres  v.  State,  212,  226,  557. 


B. 


Babb  V.  State,  178. 
Babcock  v.  People,  401. 
Backus  V.  Lebanon,  387. 
Bailey's  Case,  265. 

V.  State,  105,  174,  193,  2.32,  247, 
368,  369,  404,  508,  557,  558, 
570. 
Bain  r.  State,  29,  30,  36,  363. 
Baker  v.  State,  173,  201. 
Balbo  V.  People,  554. 
Baldwin  r.  State,  3,  227,  285,  538,  501. 

i\  Westenhaver,  317,  329. 
Ballad  v.  State,  551. 
Bang  V.  State,  176,  193. 
Banks,  Ex  parte,  320,  326. 

V.  State,  283,  495. 
Barber  i:  State,  244. 

XXV 


XXVI 


TABLE   OF   CASES. 


Barcus  v.  State,  536. 
Bardeii  v.  Briscoe,  341. 
Bare,  Ex  parte,  326. 
Barkhamstcd  v.  Parsons,  42, 
Barnes  v.  State,  548. 
Barnett  v.  People,  440,  583. 
Barney's  Case,  316,  326. 

V.  People,  401. 
Baronnet,  Ex  parte,  319,  321. 
Barron  (■.  Baltimore,  366. 

V.  State,  583. 
Bartholomew  v.  People,  251. 
Bartlett  v.  State,  403. 
Bass  V.  State,  266,  274. 
Bateman  v.  State,  353. 
Bates  V.  State,  404. 
Batten  v.  State,  470. 
Batturs  v.  Sellers,  556. 
Bauson  r.  Offley,  45. 
Baxter  v.  State,  402,  403. 
Beacom,  Ex  parte,  318. 
Beal  V.  State,  47. 
Beall  V.  State,  317,  327. 
Bean  v.  State,  177,  281,  304,  807. 
Beasley  v.  People,  280,  281,  282. 

V.  State,  231,  239,  247,  249. 
Beauchamp  v.  State,  80,  83,  275,  334, 

483,  484,  533,  583. 
Beaudien  v.  State,  583. 
Beaumont  v.  State,  384. 
Beavers  v.  State,  280,  281,  542,  543. 
Bechtellieimer  v.  State,  103,  105,  108, 

143. 
Beers  v.  State,  536. 
Beery  v.  United  States,  400,  547,  551. 
Beets  V.  State,  133,  139. 
Bel^ard  v.  Morse,  329. 
Bell  V.  Howard,  393. 

I'.  State,  178,  187,  204. 
Belram  v.  State,  85. 
Beltram  v.  State,  85. 
Ben  V.  State,  363,  440,  447,  456. 
Benavides  v.  State,  442,  443. 
Benedict,  v.  State,  274,  462. 
Bennot  i'.  State,  392. 
Bennett  v.  State,  231,  232,  248,  308. 
Benson  v.  Offley,  45. 
Benton  v.  State,  387,  535. 
Bergen  v.  People,  546. 
Berry  v.  State,  342,  347,  404,  546. 
Bessette  v.  State,  342. 
Betts  I'.  Betts,  546. 
Bijrss  r.  State,  155,  220,  222. 
Bilanskey  ;•.  State,  294,404,  405,  591. 
Bill  1-.  People,  342. 


Billigheimer  v.  State,  353,  388. 
Billings  V.  Billings,  546. 

V.  State,  352. 
Binfield  v.  State,  429. 
Binns  v.  State,  103,  104,  105,  440,  499. 
Bird  V.  State,  144,  149,  153. 
Bivens  v.  State,  m,  80,  102,  105. 
Bizzell  V.  Booker,  97. 
Blackburn  v.  Commonwealth,  544, 545. 

V.  State,  52,  56,  127,  557. 
Blackman  v.  State,  331,  332,  346,  391, 

396,  528,  582. 
Blake  v.  State,  178. 
Blakeley,  Walter  of,  Will  of,  526. 
Bland  v.  State,  583,  586. 
Bledsoe  v.  Commonwealth,  204. 
Blimni   v.  Commonwealth,    231,   235, 

239,  243,  245,  250. 
Bode  1-.  State,  178,  194. 
Bohanan  v.  State,  118. 
Bohannon  v.  Commonwealth,  12,  13, 

65,  172,   176,   203,   204,  206, 

207,  283,  286,  304,  342. 
Boles  V.  State,  583. 
BoUman,  Ex  parte,  265. 
Bonar,  Ex  parte,  326. 
Bond  V.  State,  388,  428,  457,  569. 
Bonds  V.  State,  275. 
Bonnard  v.  State,  85, 145, 146, 149, 177, 

202,  476,  478. 
Bonner  v.  State,  275. 
Boothe  V.  State,  495,  510. 
Bostock  V.  State,  534. 
Boswell  V.  Commonwealth,  231,  232, 

236,  240,  243,  246,  248,  249, 

538. 
V.  State,  229, 2.30, 538, 561, 569. 
Bouldin  v.  State,  505. 
Bovard  v.  State,  227. 
Bowden  v.  Johnson,  556. 
Bowen  v.  Pollard,  3-52. 

V.  State,  348,  352,  495,  510. 
Bower  v.  State,  556. 
Bowles  V.  State,  35,  457. 
Bowling  V.  Commonwealth,  558. 
Boyd  V.  State,  92,  304,  373,  426,  510, 

548,  550. 
Boyett  V.  State,  143, 144, 368,  .369,  404, 

405,  407,  479. 
Boyle  V.  State,  76,  80,  84,  118,  436, 

449,  499. 
Bradley  v.  State,  80,  2-32,  236,  2-39. 
Bradshaw  c.  Commonwealth,  496,  497. 

V.  State,  531,  569,  571. 
Brainard  v.  Brainard,  546. 


TABLE   OF   CASES. 


XXVll 


Brakefleld  v.  State,  442. 
Branch  v.  State,  178. 
Brant  v.  Fowler,  410. 
Bratton  v.  State,  ol,  84,  103,  107. 
Brennan  v.  I'eople,  11,  128,  l-'iO,  J3y9. 
Brewer  v.  Commonwealth,  401. 
Bridewell,  Ex  parte,  oil,  o20. 
Brimmingstool  v.  People,  388. 
Brister  v.  State,  127,  128, 312,  314,  334, 

480,  545,  547,  549. 
Bristow's  Case,  392. 
Bristow  V.  Commonwealth,  08,  302. 
Bromley  v.  People,  44. 
Brooke  v.  Townsliend,  527. 
Brooks  V.  Commonwealth,  95,  90. 

V.  People,  307. 

V.  Perry,  348. 

V.  State,  118,  593. 
Broome  v.  Keg,  274. 
Brothertony.  People,  441, 500, 570,  571. 
Brow  V.  State,  342. 
Brown,  Ex  parte,  142,  144. 

17.  Anderson,  352. 

V.  Commonwealth,  442,  443,  407, 
479,  481,  482,  525,  520,  550, 
557,  558,  502. 

V.  People,  537,  547. 

V.  Smith,  120. 

V.  State,  77,  141,  101,  107,  174, 
202,240,  243,  311,  371,  375, 
370,  384,  388,  441,  530,  537, 
540,  581,  582,  593. 

V.  Swineford,  342,  347. 
Browne  v.  Smith,  120. 

V.  State,  570. 
Brownell  v.  People,  176. 
Brownlee  v.  Hewit,  340. 
Broyles  v.  State,  141,  550. 
Brumley  v.  State,  427. 
Bruner  v.  State,  141,  142,  101,  311. 
Brunet  v.  State,  458,  475,  470. 
Bryan,  Ex  parte,  370. 

V.  State,  294,  297. 
Bryant,  Ex  parte,  310,  317,  319,  .320, 
320. 

V.  State,  300,  440,  454,  455,  542. 
Brydges,  Ex  parte,  2. 
Buchanan  v.  State,  17. 
Buckner  v.  Commonwealth,  310,  311, 

312. 
Buel  V.  People,  55,  103,  100,  107,  114, 

127. 
Buffalo,  Bayou,  B.  &  C.  R.  Co.  v.  Fer- 
ris, 387. 
Bull  V.  Commonwealth,  101,  442. 


BuUincr  v.  People,  .341,  412. 
Bullock  V.  Smith,  347. 
Bumgarner  v.  Manney,  340. 
Burden  v.  People,  583. 
Burham  v.  State,  107,  117. 
Burkliard  v.  State,  521,  522. 
Burley  v.  McGough,  526. 

V.  State,  377. 
Burnett  v.  State,  311. 
Burnham  v.  State,  104,  105. 
Burns  v.  People,  45. 

r.  State,  430. 
Burrell  v.  State,  442. 
Burrow's  Case,  233. 
Burson  v.  Mahoney,  348. 
Burton's  Case,  104. 
Bush  I'.  Commonwealth,  311,  312. 
Buster  i'.  State,  591. 
Butler   V.    Commonwealth,    .30,     128, 

540. 
Butler  V.  St.  Louis  Ins.  Co.,  527. 

V.  People,  30,  39. 
Byers  v.  Commonwealth,  387. 
Byrd  i-.  State,  275. 

V.  State,  547,  549. 


Cady  V.  State,  548,  554. 
Cahill  V.  People,  175,  192. 
Cain  V.  State,  548,  549. 
Caldwell  v.  State,  119,  120,  124. 
Callahan  v.  State,  31,  329. 
Callender  v.  Callender,  546. 
Calloway  v.  Nifong,  355. 
Calvert  v.  State,  308. 
Camp  V.  State,  288. 
Campbell,  Ex  parte,  329. 

i\  People,  175. 

V.  State,  104,  278,  ,306,  421,  427, 
432,  440,  457,  459,  505,  544. 
Cancemi  v.  People,  388,  389,  393. 
Candy  v.  State,  278. 
Cannon  v.  State,  80. 
Cantwell  v.  State,  353,  388. 
Carden  v.  State,  510,  511. 
Cargen  v.  People,  279. 
Carico    v.   Conmionwealth,    176,    207, 

427,  430. 
Carmouche  v.  Bonis,  13. 
Carnwell  v.  State,  248. 
Carr  v.  State,  402,  403,  474. 
Carrington  v.  People,  126. 
Carroll,  Ex  parte,  .322. 

V.  Commonwealth,  514,  515,  558. 


xxvni 


TABLE   OF   CASES. 


Carroll  r.  State,  13,  15,  157,172,  174, 

19G,  204,   212,  2i:J,  ;381,  535, 

555. 
Carter   v.   State,  231,   232,  23(5,  240, 

248,  249,  250,  428,  502. 
Cartright  v.  State,  241,  244. 
Cartwright  v.  State,  178,  202,231,235, 

240,  245,  250,  342,  345,  413. 
Casat  V.  State,  538,  5G1. 
Casey  v.  State,  504,  569,  593. 
Cass'  Case,  552. 
Cates  V.  State,  90,  155. 
Cathcart  v.  Commonwealth,  30,  77,  81, 

280,  483,  485. 
Cavanagh  v.  State,  341. 
Cavanah  v.  State,  342. 
Cavaness  v.  State,  540. 
Central  R.  Co.  v.  Mitchell,  347. 
Chambers  v.  Falkner,  71. 
V.  Greenwood,  340,  347. 
I'.  State,  550. 
Chaney,  Ex  parte,  329. 
Chapman  v.  Peojjle,  303. 
Charter  Oak  Life  Ins.  Co.  v.   Rodel, 

527. 
Chase  v.  People,  537,  500. 

V.  State,  285,  280.  450,  457. 
Cheek  v.  State,  173,207,359,360,  437. 
Chilclers  r.  State,  558. 
Childs  V.  State,  489,  511. 
Cliivarrio  v.  State,  308. 
Choice  V.  State,  80,  231,  232,  233,  234, 

2.39,  24(i,  351,499,  500. 
Chrystal  v.  Commonwealtii,  101. 
Chute  V.  State,  534. 
Clampitt  V.  State,  475,  476. 
(Manton  v.  State,  147. 
Clapp  V.  FuUerton,  527. 
Clark  V.  State,  103,  10,5,  107,  110,  1(!0, 

227,243,375,382,  527. 
Clarke  v.  State,  30,  70,  80,  303,  502. 
Clary  v.  Clary,  527. 
Claxton  V.  State,  158. 
Clayton  v.  State,  147. 
Clem  V.  State,  359,  300,  301. 
Clements  i;.  State,  10,  11,  32,08,  70, 

80,  215,  210. 
Clifford  V.  State,  104,  105,  178,  201. 
Clive  V.  State,  241,  244. 
Cloud  V.  State,  220. 
Clough  V.  State,  409,  502,  555. 
Cluck  V.  State,  30,  232,  239,  245,  247, 

402. 
Cluverius  r.  Commonwealth,  279,  433. 
Coates  V.  People,  290,  558. 


Cobb  V.  State,  347,  482,  493,  494,  503, 

551,  552. 
Cobia  V.  State,  591. 
Coble  r.  Coble,  343,  347. 
Cochran  v.  State,  404. 
Cochrum  v.  State,  81,  82. 
Coffee  V.  State,  105. 
Coffman  v.  Commonwealth,  38,  176, 

583. 
Cohea  r.  State,  559. 
Coker  v.  State,  174,  429,  509. 
Colbath  V.  State,  232. 

V.  State,  240,  243,  591. 
Coldiron,  Ex  parte,  317. 
Coldwell  V.  State,  119. 
Cole's  Case,  232. 

Trial,  227. 
Cole  i;.  State,  370,  382. 
Colee  V.  State,  527. 
Coleman  v.  Moody,  411. 

V.  People,  30. 

V.  State,  404,  405,  559. 
Collier  v.  State,  97,  371,  420,  441.  . 
Collins  V.  Commonwealth,  126. 

V.  People,  557,  558. 

V.  State,  127. 
Colt  r.  People,  290. 
Colter,  Ex  parte,  324. 
Combs  Case,  Harvey  of,  323. 

V.  State,  342,  347,  355,  437,  438. 
Commander  v.  State,  29,  30,  495,  500, 

513. 
Commissioners  v.  Morrison,  387. 

V.  Seabrook,  387.  ' 
Commonwealth  v.  Abbot,  495. 

V.  Ailstock,  298,  299. 

V.  Andrews,  40. 

V.  Arciier,  328. 

V.  Barker,  298. 

V.  Barnacle,  457. 

V.  Biron,  145. 

r.  Blair,  58. 

r.  Bonner,  30. 

V.  Bosworth,  558,  559. 

V.  Bowen,  53,  50,  57,  58,  133. 

V.  Boyle,  405. 

r.  Brown,  550,  557. 

r.  Call,  550. 

V.  Campbell,  36,  39,  400,  467. 

r.  Carey,  158,  177,  187,  189,  441. 

V.  Chapman,   133,  285,  294,  295, 
296,  354. 

V.  Cooley,  00. 

V.  Costeilo,  .383,  384. 

V.  Costley,  34,  292,  542,  54-3,  509. 


TABLE    OF    CASES. 


XXIX 


Commonwealth  v.  Crawford,  177,  lOfi. 
V.  Crozier,  240. 
V.  Cuffec,  479,  480,  548,  540,  550, 

552,  551. 
I'.  Daley,  105. 
V.  Dennis,  52,  60. 
V.  Dcnsmore,  44:». 
V.    Desmarteau,     lO:',    107,    110, 

304. 
V.  Devlin,  lOo,  107,  110. 
V.  Dorsey,  2:]!),  250. 
V.  Dougherty,  240. 
V.  Drake,  554. 
V.  Drew,  30,  70,  157,  158. 
v.  Drum,  13,  16,  17,  67,  70,  81,  90, 

103,  105,  107,  115,  130,  141, 

143,  177,  190,  203,  536,  559, 

570,  571. 
r.  F.dtly,  538. 
i\  Fcrrigan,  458,  467,  517. 
i:  Flanigan,  100. 
V.  Fletcher,  240. 
V.  Fo.x,  291. 
V.  Galligan,  544,  547. 
V.  Gillespie,  48. 
v.  Green,  20,  71,  248,  249. 
V.  Hackett,  438. 
V.  Hagenlock,  241. 
V.  Ilaney,  441,  444. 
V.  Hanlon,  100,  546,  548,  554. 
V.  Harley,  120. 
r.  Ilarman,  555,  570,  571. 
V.  Hart,  232,  237,  238,  240. 
V.  Harvey,  556. 

V.  Hawkins,  232,  239,  245,  530. 
V.  Hayes,  550. 

V.  Hersey,  285,  417,  407,  591. 
r.  Hill,  42,  127. 
V.  Hilliard,  188,  458. 
V.  Holder,  40. 
V.  Holland,  20. 
?•.  Holmes,  557,  558,  559. 
r.  Horton,  358. 
V.  Howe,  548. 
V.  Huglies,  372,  373. 
r.  Ingersoll,  358. 
V.  Jackson,  57,  58. 
V.  Jones,  106,  243. 
V.  Keeper  of  Prison,  57,  58,  101, 

102,  169,  317. 
V.  Knapp,  392,  544,  548,  550. 
V.  Kenney,  556. 
t'.  Keyes,  556. 
V.  Leight,  266. 
r.  Lemley,  317,  325. 


Commonwealth  v.  Lewis,  373. 
r.  Linton,  200,  205,  266. 
V.  Lynch,  155,  538. 
V.  Macloon,  2,  28,  34,  42,  44,  46, 

47,  48,  128,  260,  261. 
r.  Malone,  232,  239,  245. 
V.  Marsliall,  60. 
V.  iMartin,  290. 
V.  Matthews,  450, 
V.  McAfee,  101,  295. 
I'.  McCann,  540. 
v.  McDermott,  479,  482. 
V.  McLaughlin,  30,  158. 
r.  McNeill,  205,  200. 
v.  Mel 'ike,  29,  38,  39,  140. 
v.  Mead,  205,  457,  459,  556. 
V.  Jletropolitan  R.  Co.,  164. 
V.  ]Mink,  39,  53,  55,  00,  14.3. 
V.  Miller,  287. 
V.  Mitchell,  139,  553. 
V.  Morey,  548. 
V.  Mosler,  144,  551,  552. 
V.  Murpliy,  304,  510. 
r.  Murray,  103,  115,  442,  443. 
t\  Meyers,  205. 
■  V.  Xott,  548. 
l:  O'Brien,  127,  549. 
V.  Parker,  01,  109,  201. 
V.  Pemberton,  127. 
V.  Peters,  202. 
V.  Pettit,  546. 
I'.  Piper,  530. 
V.  Pitsinger,  556. 
V.  Piatt,  231,  235,  240,  250. 
V.  Pomeroy,  522. 
r.  Porter,  349. 
V.  Preece,  548,  552. 
V.  Price,  558. 
I'.  Prophet,  367. 
V.  Hailing,  108,  441. 
V.  Randall,  109. 
i\  Reynolds,  555. 
V.  Rich,  520. 
V.  Riley,  12,  95, 139,  172, 170, 196, 

197,  202. 
V.  Roberts,  441,  444. 
V.  Robinson,  373,  468,  564,  569. 
V.  Roby,  45,  411. 
!'.  Rodes,  07. 
V.  Rogers,  525,  538. 
V.  Sanborn,  544. 
r.  Scott,  558. 
r.  Sego,  551. 
V.  Seibert,  189. 
V.  Self  ridge,  139,143, 172,  176, 195. 


XXX 


TABLE   OF    CASES. 


Commonwealth  v.  Semmes,  322,  328. 
r.  IShaw,  379. 

I,-.  Smith,  341,  345,  546,  548,  552 
V.  Snelling,  30. 
1-.  Stafford,  290. 
V.  Stinger,  279. 
V.  Stout,  30. 

V.  Sturtivant,  523,  525,  534. 
V.  Sullivan,  530. 
V.  Taylor,  548,  549. 
V.  Tliompson,  27,  164,  482. 
V.  Tilton,  358. 

V.  Tuckerman,  548,  549,  550. 
V.  Walker,  479,  482. 
V.    Webster,   1,   31,  65,  68,  139, 
140,  143,  290,  426,  536,  564, 
569,  571. 
r.  White,  170. 
V.  Wliitler,  155. 
V.  Wiiittemore,  548. 
V.  Williams,   103,   107,   115,  442, 

443. 
V.  Woodward,  189,  294,  297. 
V.  Worcester,  341. 
V.  York,  1,  5,  30,  32,  05.  76,  80, 
127. 
Conn  V.  People,  77. 

V.  State,  70,  372. 
Connaughty  v.  State,  126,   128,   129, 

133,  134,  173,  207. 
Connecticut    Mut.   Life    Ins.    Co.   v. 
Groom,  50. 
V.  Lathrop,  526,  527. 
Conner   v.    Commonwealth,  310,  311, 
312,  359,  300. 
V.  State,  77,  556. 
Conover  v.  State,  357. 
Cook  r.  Kitter,  342. 

V.  State,  379,  382,  383,  401. 
Cooper,  Ex  parte,  317. 

V.    Massachusetts    Life  Ins.    Co., 

50. 
V.  State,  528. 
Copeland  v.  State,  156,  177,  190. 
Copp  V.  Hennikcr,  386,  387. 
Copperman  i;.  People,  30. 
Corbett  v.  State,  328,  556. 
Cordell  v.  State,  294,  295. 
Cornelius  i'.  Commonwealth,  427,  432. 
Cornwallis'  Case,  Lord,  139. 
Cornwell  v.  State,  231,  232,  236,  243, 

245,  248,  249. 
Cory  !'.  Silcox,  348. 
Coryell  v.  Stone,  526. 
Costley  V.  State,  457. 


Costly  V.  State,  391,  393. 

Cotton  V.  State,  81,  176,  188. 

Couch  V.  State,  367. 

Coward  v.  State,  510. 

Cox  V.  People,  103,  107,  114,  290,  309, 

548,  549,  552. 
V.  State,  104,  100,  308,  404,  436. 
CoxwcU  V.  State,  501. 
Coyle    V.   Commonwealth,    230,    521, 

538,  561. 
Craft  r.  Commonwealth,  105,  394. 

V.  State,  103,  107,  110,  532,  558, 

569. 
Crawford  v.  State,  556,  575. 

V.  Williams,  355. 
Creek  v.  State,  142,  175,  204. 
Creswell  v.  State,  458,  460. 
Crist  V.  State,  402,  403,  505. 
Crocker  v.  Hoffman,  408. 
Crookham  v.  State,  442. 
Croom,  Ex  parte,  320,  322,  329. 
Cross  V.  People,  558. 

V.  State,  173,  240,  341,  342,  345, 

563,  569. 
Crowell  V.  Peru,  352. 
Crusen  v.  State,  375,  383,  384. 
Cummings  v.  State,  46. 
Cunningham  v.  Neagle,  11,  15,  16. 

V.  State,  119,  537,  560. 
Curry    v.    Commonwealth,    243,    245, 

595. 


D. 

Dacey  v.  People,  84,  103,  229. 

V.  State,  367. 
Dains  v.  State,  81,  99,  104,  105. 
Dale  V.  State,  104. 
Daly  V.  People,  118. 
Danby's  Case,  316,  321. 
Dane  Co.  v.  Dunning,  387. 
Daniel  v.  State,  541,  545,  575. 
Darby  v.  State,  174,  203, 438,  439,  440. 
Darling  r.  Williams,  177. 
Darry  v.  People,  97. 
Davidson  v.  State,  126,  429,  431. 
Davis,  Jefferson,  Case  of,  322. 

V.  Foster,  488. 

?;.  Franke,  489. 

V.  People,  175,  196,411. 

V.  State,  17,  77,  239,240,242,275, 
310,  312,  328,  334,  343,  354, 
410,  483,  485,  526,  549,  564, 
606,  569. 


TABLE   OF   CASES. 


XXXI 


Davison  v.  People,  16,  17,  70,  80,  157, 

175,  203,  212,  2i;j. 
D^wley  V.  State,  557. 
Dawson  v.  State,  232,  242,  245,  248, 

250,  3G3. 
Dean  v.  Commonwealth,  503,  505,  570. 
De  Arman  v.  State,  173,  193,  194. 
Deathridge  v.  State,  550. 
De  Forest  r.  State,  175,  190,  197,  204, 

501,  502. 
Dejarnette    v.    Commonwealth,    227, 

520,  527. 
Dennis  t-.  State,  290,  292. 
Derby  v.  Derby,  546,  548. 
Dernnan  v.  People,  159. 
Dervies  v.  Heywood,  347. 
V.  Phillips,  343,  346. 
Dexter  v.  Hall,  526. 
De  Witt  V.  Early,  527. 
Dias  V.  State,  158,  275,  294,  307. 
Diaz  V.  State,  297. 
Dick  V.  State,  548,  591. 
Dickens  v.  State,  30. 
Dickerson  v.  Burke,  342,  343,  347. 

V.  State,  555,  583,  584. 
Dickinson  v.  Barber,  520. 
Dickson  v.  State,  427,  431, 
Digby  V.  People,  440. 
DiU  V.  State,  12,  80,  95,  309,  582. 
Dille  V.  State,  348,  350. 
Dillin  V.  People,  499,  500,  505. 
Dillon  V.  State,  294. 
Dilworth  v.  Commonwealth,  392. 
Diman  v.  State,  547. 
Dixon  V.  State,  440,  401,  402,  403,  530, 

545. 
Dobbins  v.  Oswalt,  348. 
Dodge  V.  People,  375,  377,  384. 
Doe  V.  Regan,  527. 

V.  Roe,  540. 
Dolan  V.  State,  173,  179,  204. 
Doles  V.  State,  477. 
Dolloff  V.  Stimpson,  393. 
Donellan  v.  Commonwealth,  32,  80. 
Donelly  v.  State,  103,  105,  109,  112. 
Donnelland's  Case,  0. 
Donnelly  v.  State,  420,  441,  443,  550, 

594. 
Doran  v.  State,  592. 
Dorgan  v.  State,  400. 
Doster  v.  Brown,  342,  347. 
Dougherty  v.  Commonwealth,  376, 382, 

401. 
Douglass  V.  State,  119,  120,  124,  372. 
Dove  V.  State,  227,  527,  538,  560. 


Dover  v.  State,  591. 
Dow  I'.  Murrill,  546. 
Dovvling  V.  State,  275. 

V.  State's  Case,  388. 
Dows  V.  Harper,  355. 
Doyle  V.  State,  353. 
Dozier  v.  State,  67,  576. 
Drake  v.  State,  104, 139, 158,  172,  173, 

395,  442,  457,  459,  460,  461, 

534. 
Draper  v.  State,  149. 
Drennan  v.  People,  158. 
Drinkout  v.  Eagle  Mach.  Works,  352. 
Driskill  v.  State,  3G2,  394. 
Drumright  v.  State,  550. 
Drury  r.  State,  320. 
Drye  v.  State,  289. 
Dubose  V.  State,  532,  533,  591. 
Ducher  v.  State,  61. 
Dudley,  In  re  (the  Mignonette  Case), 

18. 
Duebbe  v.  State,  104,  105. 
Duff  V.  Combs,  355. 
Duffield  I'.  Morris,  527. 
Duffin  i:  People,  341. 
Dukes  V.  State,  76,  99,  290,  292,  294, 

429,  450,  503. 
Dula  v.  State,  261. 
Dumas  v.  State,  133,  304,  307,  408,  440, 

509,  542,  547. 
Duncan  v.   State,  118,  120,  174,  178, 

196,  203. 
Dunliam's  Appeal,  527. 
Dunn  V.  Commonwealth,  376,  380,  382, 

401. 
V.  State,  440,  443,  461,  510,  512, 

558. 
Dupree  v.  State,  16, 173,  429,  457,  458, 

459,  473,  483. 
Duran  v.  State,  104,  106,  107,  118. 

V.  Territory,  125. 
Durham  v.  State,  94. 
Dwyer  v.  State,  280. 
Dyson,  Ex  parte,  328. 
V.  State,  176,  217. 


E. 


Earns  V.  State,  147. 

Earll  V.  People,  341,  557,  558. 

Early  v.  State,  351,  505,  515,  516. 

Earp  V.  State,  545,  547. 

Eason  v.  State,  594. 

Eastman  v.  Wright,  303. 


xxxn 


TABLE   OF   CASES. 


Eastwood  V.  People,  387,  410. 
Edmonds  v.  State,  306,  430,  437. 
Edmonson  v.  State,  2, 34,  289,  298,  300. 
Edward  v.  Commonwealth,  391,  392. 
Edwards  v.   State,    17,  178,  283,  285, 

289,  429,  582. 
Eggers  I'.  Eggers,  527. 
Eiland  v.  State,  80,  84,  173,  182,  190, 

201,  426,  457,  544,  557. 
Elick  V.  Territory,  351,  352. 
Eliza  V.  State,  370,  384. 
Elkin  V.  People,  404. 
EUiston  V.  State,  579. 
Emulous,  The,  20. 
Epps  r.  State,  290,  341,  342,  375,  379, 

580. 
Errington's  Case,  442. 
Erwiu  V.  State,  81,  141,  177,  204,  200, 

367. 
Estes  i".  State,  231,  232,  230,  239,  244, 

246,  247. 
Ettinger  v.  Commonwealth,  515,  516, 

556. 
Evans  v.  Evans,  546. 
V.  People,  87,  474. 
V.  State,  80,  119,  168,   174,  182, 
404,  472,  474. 
Everett  v.  State,  461,  464,  528,  529. 
Ezell,  Ex  parte,  328. 


F. 


Fahnestock  v.  State,  103, 105,  118, 119, 

307,  457,  535. 
Fain  i'.  Commonwealth,  175,  252,  490. 
Eairchild  v.  Bascomb,  526. 
Faley  v.  People,  318. 
Faliin  r.  State,  582. 
Farmau  v.  Lanman,  343,  346. 
Farrant  v.  Barnes,  162,  164. 
Farrell  r.  State,  238. 
Farrer  v.  State,  104. 
Farrington's  Case,  321. 
Farri.s  v.  Commonwealth,  16,  17,  84, 

175,  192. 
Felder  V.  State,  438,  498,  531,  533. 
Felix  V.  State,  517,  588. 
Felton  r.  United  States,  30,  104. 
Fennesy,  Kx  parte,  330. 
Kenton's  Case,  102. 
Ferguson  v.  State,  12(i,  341,  342,  343, 

346. 
Fernandez  v.  State,  467,  468. 
Ferrell  v.  State,  240,  243,  246. 


Ferrill  v.  Commonwealth,  46. 

Ferrington's  Case,  316. 

Field  V.  State,  143. 

Fielder  v.  State,  496. 

Fields  V.  State,  119. 

Fife  i\  Commonwealth,  548,  549. 

Fight  V.  State,  375,  383. 

Filkins  v.  People,  173. 

Finch  V.  State,  173,  203,  200,  320,  324, 

320,  499,  501,  503. 
Finn  V.  State,  283,  285,  280,  397. 
Firby  v.  State,  275. 
Fisher  v.  People,  500. 

V.  State,  133,  283,  496. 
Fitzcox  V.  State,  558. 
Fitzgerald  v.  People,  275,  285,  286. 

V.  State,  119,  441. 
Fitzgerold  v.  People,  277,  283,  575. 
Fitzhugh  1-.  State,  402,  403,  429. 
Fitzpatrick  v.  Commonwealth,  230. 

V.  People,  364. 

V.  State,  179. 
Flagg  V.  People,  548,  549. 
Flanagan  v.  People,  227,  234,  235,  245. 

V.  State,  144,  547. 
Flanagin  v.  State,  549,  558. 
Flanegan  v.  State,  496,  497. 
Flanigan  v.  People,  231,  233. 
Fleetwood  v.  Commonwealth,  92. 
Fletcher  v.  State,  346,  351,  352. 
Flinn  i\  State,  276. 
Floyd,  Ex  parte,  317. 
'r.  State,  510,511. 
Fogarty  v.  State,  142. 
Ford  V.  State,  239,  250,  561,  569,  591. 
Forman  v.  Commonwealth,  531. 
Forrest  v.  State,  308. 
Forrester's  Case,  216. 
Forsytlie  v.  Cothran,  343,  347. 
Fortenberry  v.  State,  176,  203,  317, 

303. 
Foster,  /n  re,  318. 

V.  State,  178,  204,  476,  477. 
Fonts  V.  State,  279,  282,  283,  285,  280, 

287,  362,  363,  364,  547,  548. 
Fowler  r.  State,  401. 
Fo.\  V.  Lambson,  557. 

V.  State  of  Ohio,  366. 
Frain  v.  State,  547. 
Francis  r.  Porter,  288. 
Frank  r.  State,  40,  126,  133,  134,  548, 

550. 
Franklin  v.  State,  456,  457,  533,  542, 

547. 
Eraser  i:  State,  475,  517,  518. 


TABLE   OF   CASES. 


XXXIU 


Free  v.  State,  347. 

Freeman  v.  State,  76. 

Freligh  v.  Ames,  348. 

French  v.  State,  5-59,  569. 

Friar  v.  State,  362. 

Fricry  v.  People,  231,  232,  235,  246, 

461. 
Frost  V.  Commonwealth,  556. 
Fry  V.  Bennett,  347. 
Fuller  V.  People,  280. 
Fundy  v.  State,  528,  529. 


G. 

Gahan  v.  People,  596. 

Gainey  v.  People,  182,  583. 

Gaitan  v.  State,  240. 

Gallagher  v.  People,  367. 

Galvin  v.  State,  93. 

Gandolfo  v.  State,  381,  413,  414,  488. 

Gann  v.  State,  142,  155. 

Gardner  v.  People,  354. 

V.  State,  467. 
Garnet  v.  State,  214. 
Garrard  v.  State,  548. 
Garrett  v.  State,  499,  501,  513. 
Gates  V.  Meredith,  246,  248. 
Gatlin  i'.  State,  31,  81. 
Gehrke  v.  State,  279,  295. 
George  v.  State,  558,  569, 
Gibbons  v.  People,  407. 
Gibson  v.  Commonwealth,  289,  290. 
V.  Gibson,  526. 

V.  State,  476,  477,  484,  563,  570. 
Giddings  v.  Steele,  356. 
Gilchrist,  Ex  parte,  322. 
Giles  I'.  State,  104, 106,  107,  117,  3-58. 
Gilleland  v.  State,  177,  203. 
Gillespie  v.  State,  392. 
Gillooley  v.  State, '232,  343,  510. 
Gilmanton  v.  Hamm,  411. 
Gilmore  v.  People,  175. 
Giskie  v.  State,  310. 
Gladden  v.  State,  174,  192,  272,  273, 

375,  376,  5.36. 
Glenn  v.  State,  583. 
Glover  v.  Woolsey,  392. 
Godfrey  v.  State,  556. 
Goersen  r.  Commonwealth,  290. 
Golden  v.  State,  231, 232,  239, 242,  244, 

250,  472. 
Golliher  v.  Commonwealth,  31, 94, 2-32, 

242,  247. 
V.  State,  97. 

C 


Gomez  v.  State,  565,  570.     ' 
Gonzales  v.  State,  104,  106,  107,  118, 
290,  291. 
V.  State,  428. 
Good,  Ex  parte,  326. 
Goodall  V.  State,  77,   177,  188,   194, 

441,  536. 
Goodhue,  Matter  of,  322. 

V.  People,  278. 
Goodin  v.  State,  353,  388. 
Goodloe  V.  State,  274. 
Goodman  v.  State,  158. 
Goodwin's  Case,  317,  326. 

V.  State,  239,  364,  461,  464,  475, 
526,  562. 
Goodwyn  v.  State,  290,  293. 
Gordon  v.  People,  570. 
Gore  V.  State,  479,  482. 
Governor  v.  Fay,  328. 
Grady  v.  People,  563,  569. 
Graeter  v.  State,  351,  352. 
Graham  v.   Commonwealth,   77,   538, 
561. 
V.  State,  376,  384. 
Grainer  r.  State,  184. 
Grainger  v.  State,  177,  189, 
Gramm  v.  Boener,  26. 
Granger  v.  State,  18. 
Grant  v.  People,  388. 

V.  Thompson,  526,  527. 
Graves  v.  State,  280,  413,  456,5.38,561. 
Gray  v.  Burk,  346. 

V.  Combs,  14,  172,  214,  400. 
V.  State,  118,  120,  124. 
Green's  Case,  367. 

V.  Commonwealth,  103,  105,  107, 

11.5,  279,  286,  318,  367. 
V.  State,  76,  80,  81,  104,  105,  118, 
120,  126,  176,  261,  429,  536, 
556,  504,  568,  569. 
Greenfield  v.  People,  470,  497. 
Greenley  i-.  State,  560. 
Greer  v.  State,  372. 
Gregg  V.  McDaniel,  410. 
Greschia  v.  People  175,  203,  204. 
Gresham  v.  Walker,  596. 
Greta  v.  State,  583. 
Grigg  V.  People,  349. 
Grigsby  v.  State,  496,  499. 
Grimm  v.  People,  377,  384, 
Grisson  v.  State,  405,  458. 
Griswoldj;.  State,  556,  557. 
Grosse  r.  State,  549. 
Grosvenor  v.  St.  Augustine,  44, 
Guedel  v.  People,  289,  291,  293, 


XXXIV 


TABLE   OF   CASES. 


Guetig  V.  State,  227,  425,  537,  562, 569. 
Guice  v.  State,  176,  189,  193. 
Guile  V.  Brown,  387. 
Guilford  v.  State,  244,  246. 
Guillotte  V.  New  Orleans,  366. 
Gunter  v.  State,  231,  359,  361, 508,  525, 

526,  569,  582. 
Gwatkin  v.  Commonwealth,  245. 


H. 


Ilackett,  In  re,  387. 

V.  People,  441,  447,  594. 
Hadjo  V.  Gooden,  489. 
Hadley  v.  State,  29,  30,  80,  139,  140. 
Hagan  v.  State,  282,  286,  520. 
Hasue  V.  State,  76. 
HaUe  V.  State,  69,  81,  232,  236,  245, 

246,  248,  250,  501. 
Hall  V.  Commonwealth,  396,  398,  520, 
521. 

V.  Huse,  545. 

V.  State,  176,  196,  517,  731. 
Hallam  r.  Means,  26. 
Haniby  v.  State,  77,  81,  99. 
Hamilton,  Ex  parte,  176,  196,  199. 

V.  Comnionwealtb,  376. 

V.  People,  268,  557,  558. 

V.  State,  46,  548. 
Hammond  v.  State,  20. 
Hampton  i-.  State,  314,  582. 
Hancock  v.  Baker,  207. 
Haney  i-.  State,  289,  292,  595. 
Hannahan  v.  State,  558. 
Hannon  v.  State,  126. 
Hanoff  V.  State,  388. 
Hanrahan  v.  People,  30. 
Hanvey  v.  State,  230, 236, 339, 241, 245. 
Harcourt's  Case,  208. 
Hardin  v.  State,  298,  300,  527. 
Harrel  v.  State,  136. 
Harriman  v.  State,  384. 
Harrington  v.  State,  126,  142,  143. 
Harris  r.  Harris,  547. 

V.  State,  67, 118,  119, 120, 124, 145, 
179,  419,  428,  429,  551. 
Harrison  i\  Commonwealtli,85,91,458. 

V.  State,  13, 144, 157, 174,  212,  213, 
395,  461,  462,  476,  477,  495, 
558,  565,  508,  570,  573. 
Hart  V.  Commonwealth,  420,  401. 

r.  State,  119,  120,  124,  534. 
Hartigan  »'.  Territory,  402,  403,  401, 
405. 


Hartung  v.  People,  523,  524. 

Harvey's  Case,  SKi,  321. 

Ilatchett  V.  Commonwealth,  565,  566, 

570. 
Hathaway  v.  Nat.  L.  Ins.  Co.,  527. 
Hathorn  v.  King,  526. 
V.  Richmond,  27. 
Hawe  I'.  State,  500. 
Hawkins  v.  Bowie,  355. 

V.  State,  84,  144,  174,  528. 
Hawley  v.  Commonwealth,  312. 
Hawthorne  i'.  State,  80,  427,  536,  509. 
Hayes  v.  State,  157. 
Ilaynes  v.  State,  17, 174,  201,  204,  501. 
Hays  V.  State,  441. 
Heacock  v.  State,  313. 
Head  v.  State,  80. 
Heard  v.  State,  563,  570. 
Heath  v.  Commonwealth,  462, 467,  468. 

V.  State,  558. 
Hector  v.  State,  548,  549. 
Heffren,  Ex  parte,  317,  324,  325,  326, 

330. 
Heine  v.  Commonwealth,  40. 
Hellenes  v.  State,  417. 
Hemmaker  v.  State,  47. 
Henderson  v.  State,  192. 
Hendrickson  v.  Commonwealth,   169, 

555. 
Hennies  v.  Vogel,  342. 
Henning  v.  State,  103,  334,  404,  405. 
Henrie  v.  State,  283. 
Henry  i-.  State,  80,  242,  244,  281,  309, 

565,  570,  596. 
Henslee  v.  Cannefex,  354. 
Henslie  v.  State,  232. 
Herbert's  Case,  320,  321. 
Ilcrrin  i-.  State,  70,  104. 
Hewlett  r.  Wood,  527. 
Higbie  ?'.  Comstock,  355. 
Higlit  r.  United  Stktes,  317,  322,  325, 

326. 
Hill  I'.  Commonwealth,  30, 81, 105,  420, 
442,  536. 
t'.  People,  29,    31,   08,    286,   380. 

387,  388. 
V.  State,  30,  80,  119,  147,  376,  377, 
379,  380,  383,  440,  441,  443, 
450,  578,  583,  587. 
Hillman  v.  Chester,  355. 
Hindi  r.  State,  155,  174,  483,  579. 
Tlinchliffe's  Case,  173. 
nines  v.  Commonwealth,  452. 

V.  State,  279. 
Ilinton  V.  State,  142,  177,  191,  203. 


TABLE   OF   CASES. 


XXXV 


Hirn  v.  State,  279. 

Hirston  v.  State,  214. 

Hittner  v.  State,  175,  202,  471. 

Hock,  Ex  parte,  317,  325,  326. 

Hodde  V.  State,  308. 

Hogan   V.   State,    119,  120,  125,   536, 

505,  506,  570. 
Hoge,  Ex  jiarte,  328. 
Holcomb  I,'.  State,  527. 
Hoklen  V.  State,  351,  570. 
Holder  v.  State,  582. 
Holford  V.  Alexander,  355. 
Holland  v.  State,  90. 
Holler  V.  State,  429,  432. 
Holley  I'.  State,  173,  324,  326. 
Holliday  v.  People,  382. 
Holloway  v.  Commonwealth,  175,  204, 

207,  427. 
V.  Eeg,  274. 
Holly  r.  State,  30,  149. 
Holmes  v.  Commonwealth,  384. 

V.  State,  174,  250,  206,  377,  563, 

570,  583. 
Holsenbake  v.  State,  479,  541. 
Holt  V.  People,  396. 

V.  State,  178,  191,  495,  496,  510. 
Holton  I'.  State,  376,  381. 
Honesty  v.  Commonwealth,  178,  190, 

197. 
Honeycutt  v.  State,  476,  478,  554,  580. 
Hood  I'.  State,  30. 
Hooker  v.  Commonwealth,  376,  384. 
Hopkins  v.  Commonwealth,  4(il,  462, 

473. 
Hopkinson  v.  People,  175. 
Hopps  V.  People,  483, 521, 537, 560, 561. 
Hopt   V.  People,  231,  235,  240,  242, 

250,  401,  544,  557. 
Horbach  v.  State,  177,  427. 
Home  V.  State,  569,  571. 
Houck  V.  Barthold,  352. 
House  V.  Whitis,  339. 
Howard  v.  State,  146,  427,  429,  433, 

573,  582. 
Howe  V.  Treasurer  of  Penfield,  387. 
Howell  V.  Fry,  387. 

V.  State,  427. 
Howser  v.  Commonwealth,  531. 
Hoxie  V.  Home  Ins.  Co.,  347. 
Hubby  V.  State,  119,  120,  124. 
Hudgins  v.  State,  175,  208,  244. 
Hudson  V.  Commonwealth,  548. 

V.  State,  147,  178,  442,  557,  509. 
Huffman  v.  Commonwealth,  595. 
Hughes  V.  Hughes,  546. 


Hughes  V.  State,  558. 
Hughey  v.  State,  429. 
Huling  V.  State,  77. 
Hull  V.  State,  119. 
Humphreys  v.  State,  246. 
Hunling  r.  State,  11. 
Hunnicutt  v.  State,  178,  204. 
Hunt  V.  People,  441. 

V.  State,  348,  349. 
Hunter  v.  State,  261,  304,  309,  519. 
Hurd  V.  People,  74,  80,  149,  153,  176, 

443. 
Hurt  r.  State,  359. 
llussey  V.  State,  485. 
Hutchinson  v.  State,  383. 
Hyatt  V.  Adams,  27. 


I. 


Indianapolis  v.  Murphy,  352. 
Ingalls  V.  State,  236,  241. 
Ingram  v.  State,  173,  203. 
Inhabitants  of  Fayette  v.  Chesterville, 

526. 
Irby  V.  State,  155,  156,  433,  442. 
Irvin  V.  State,  103,  106,  139,  177,  196, 

200. 
Isaacs  V.  State,  16,  172,  177. 
Isham  V.  State,  127. 


J. 


Jackman  v.  State,  583. 
Jackson  v.  Commonwealth,  375,  376, 
379,  381,  382,  383,  442,  444. 
V.  People,  301. 

V.  State,  17,  80,  84,  126,  144,  145, 
173,  188,  190,  192,  201,  281, 
390,  421,  456,  552,  555,  565, 
570,  593. 
V.  Wood,  306. 
Jacobs  V.  Commonwealth,  377,  521. 
James  v.  State,  177,  217. 
Jane  v.  Commonwealth,  272,  283,  583. 
Jaques  v.  Cesar,  355. 
Jarrel  v.  State,  404,  580. 
Jeffords  v.  People,  401,  464,  465. 
Jeffries  v.  Commonwealth,  377. 
r.  Randall,  392. 
V.  State,  240,  244. 
Jenkins  v.  North  Carolina  Ore  Dress- 
ing Co.,  343. 
V.  Ore  Dressing  Co.,  347. 


XXXVl 


TABLE   OF   CASES. 


Jenkins  v.  Stale,  54G. 

Jennings  v.  State,  279. 

Jewell  V.  Commonwealth,  375,  380, 
383,  384,  389. 

Jim  V.  State,  547. 

V.  Territory,  225. 

Johns  i\  Commonwealth,  133. 

Johnson  v.  State,  104,  107,  117,  143, 
146,  174,  177,  188,  190,  212, 
245,  341,  359,  3G0,  362,  363, 
364,  420,  427,  440,  444,  447, 

461,  462,  472,  475,  540,  545, 
547,  557,  562,  564,  570,  591. 

Johnston's  Case,  77,  78. 

V.  Commonwealth,  61. 
Jones,  Ex  parte,  324. 

V.  Commonwealth,  231,  235,  239, 
243,  246,  250,  373. 

V.  People,  408,  411,  457. 

V.  State,  30,  69,  80,  83,  93,  94,  134, 
136,  153,  158,  173,  204,  205, 
231,  232,  235,  244,  245,  294, 
295,  373,  379,  410,  411,  413, 
414,  438,  439,  440,  461,  472, 
474,  545,  552,  562,  564,  566, 
569. 
Jordan  v.  State,  70,  133, 134,  178,  189, 
359,  360,  440,  449,  453,  454, 

462,  471,  501,  502,  548,  549, 
582. 

Josephine  v.  State,  555. 

Joy  r.  State,  309. 

Judge  u.  State,  149,  173,  178,  201. 

Jumpertz  v.  People,  405. 


K. 


Kaime  r.  Trustees,  342. 

Kain  v.  State,  282,  286,  287. 

Kallock  V.  Superior  Court.  268. 

Kane  v.  Commonwealth,  309,  442. 

Kee  V.  State,  37,  411. 

Keete  v.  People,  310. 

Keenan  v.  Commonwealth,  10.3,  105, 

231,  235,  243,  245,  24(>,  250. 
V.  State,  161,  405. 
Keener    v.   State,  12,    13,    157,    172, 

174,  329,  392,  427,  429,  432, 

463. 
Kehoe  v.  Commonwealtli,  444,  401. 
Keithler  r.  State,  274,  315,  544. 
Keller  v.  Scott,  355. 
Kelley  v.  People,  556. 
V.  State,  35,  36,  37. 


Kelly  V.  Commonwealth,  103, 107, 116, 
118,  243,  250. 
r.  People,  388. 

V.  State,  232,  239,  243,  245,  384, 
440,  547. 
Kelsey  v.  Bush,  556,  557. 
Kelsoe  v.  State,  479,  482. 
Kemp  V.  Cook,  355. 

V.  State,  563,  570.  ( 

Kenan  v.  State,  393,  394. 
Kendall,  Ex  parte,  317,  325,  330. 

V.  State,  178,  204,  206,  591. 
Kendrick  v.  State,  176,  569,  571. 
Kenna  v.  State,  559. 
Kennedy   v.   Commonwealth,    16,    17, 
175,  528. 
V.  People,  286,  342,  347,  515,  516. 
V.  State,  95,  96,  591. 
Kenney  v.  People,  245. 
Kenny  v.  People,  231,  232,  243,  250. 
Kent  V.  Charlestown,  393. 

V.  People,  77,  80. 
Kerese  v.  State,  367. 
Kernan  r.  State,  466,  469. 
Kerr  v.  State,  402. 
Kilgore  v.  State,  593. 
Killen  v.  State,  17. 

Kilpatrick  v.  Commonwealth,  70,  73, 
81,  103,   105,   142,  570,  571, 
583. 
Kilrow  V.  Commonwealth,  559. 
King  V.  Commonwealth,  139,  141. 
?•.  Fielder,  384. 
V.  Hollingsberry,  384. 
V.  State,  57,  87,  178,  204,311,427, 
534,  551,  554,  562. 
Kingen  i-.  State,  175. 
Kingston  v.  Towle,  387. 
Kinnaman  v.  Kinnaman,  342,  343. 
Kinney  v.  People,  175,  201. 
Kirby  v.  State,  129,  508. 
Kirk's  Case,  323. 

V.  State,  404,  407,  408. 
Kittrel,  Ex  partp,  .326. 
Kizer  v.  State,  347,  349. 
Kleinschmidt  v.  Dunphy,  .388. 
Kocrner  v.  State,  499,  .500. 
Koontz  V.  State,  595,  596. 
Koppikus  V.   Commissioners  of  State 

Capitol,  .387. 
Krebs  v.  State,  591,  595,  590. 
Kremling  !).  Lallman,  401. 
Kriel    v.    Commonwealth,    231,    235, 

243,  304,  5.38,  561. 
Kunde  V.  State,  491,  494,  510,  513,  570. 


TABLE   OF   CASES. 


XXXVll 


La  Beau  r.  People,  401,  463. 

Lacy  I'.  State,  215. 

Lafayette  v.  Weaver,  34L 

Lake   Erie    W.    &   St.   L.   R.   Co.   v. 

Heatli,  387. 
Lakin  v.  Lakin,  00. 
Lamar  i;.  State,  84,  170,  194,  195. 
Lamb  v.  State,  402. 
Lambeth  v.  State,  157,  420,  548. 
Lancaster  v.  State,  231,  233,  235,  243, 

247. 
Land  );.  Williams,  S55.  , 

Lander  v.  State,  177,  190,  191,  402. 
Landis  v.  Landis,  520. 
Lane  v.  Commonwealth,  583. 

V.  State,  505,  570. 
Lanergan  v.  People,  32,  70,  105,  232, 

245,  248,  309. 
Lang  I'.  State,  102,  104,  100,  108,  457, 

479,  509,  570,  572. 
Langstaffe's  Case,  157. 
Larkins  r.  Sarter,  342,  347. 
Laros  v.  Commonwealth,  540,  548. 
Latham  v.  Latham,  546. 
Lawless  v.  State,  500. 
Lawlor  v.  People,  175. 
Lawrence  v.  Commonwealth,  376,  377, 
378,  382,  428,  432. 
V.  State,  372. 
Lawson  v.  State,  555. 
Lawton  v.  Sun  Mat.  Ins.  Co.,  232. 
Layier    v.    Commonwealth,   285,  298, 

300,  309. 
Laydon  v.  State,  542. 
Leach  v.  Prebster,  527. 
Leache  v.  State,  227,  228. 
Ledbctter  v.  State,  447. 
Lee  V.  State,  97,  161,  102,  164. 

V.  Tillotson,  386. 
Leiber  v.  Commonwealth,  441,  446. 
Leigh  ('.  People,  71. 
Leighton  v.  People,  69,  71,  105. 

V.  Sargent,  27,  410. 
Leonard  v.  State,  173,  201. 

V.  Territory,  280,  495,  505,  570. 
Leschi  v.  Washington  Territory,  375, 

376,  377,  591. 
Lester   v.   State,  290,  298,  300,  322, 

323. 
Levells  v.  State,  174, 179,  203. 
Levison  v.  State.  547,  549. 
Levitt's  Case,  31. 
Levy  V.  Langridge,  164. 


Lewallen  v.  State,  458. 
Lewis  V.  Commonwealth,  427. 

V.  State,  67,  68,  104,  173,  193,  441, 

472,  474. 
Lightfoot  V.  State,  540. 
Lilly  V.  .State,  213. 
Lincoln  v.  Smith,  388. 
Lindsay  v.  People,  557,  558. 

V.  State,  575. 
Lingo  V.  State,  174,  201,  429. 
Liskosski  v.  State,  579. 
Lister  y.  State,  178,  188. 
Little  V.  Commonwealth,  476,  477. 

V.  State,  429. 
Livingston  v.  Commonwealth,  39,  279, 

286,  298,  310,  311,  438,  439. 
Lockett  V.  State,  559. 
Lodano  v.  State,  280. 
Loeffner  v.  State,  282,  283,  286,  347, 

390,  538,  561. 
Logan  V.  State,  429,  363,  444. 
Logue  V.  Commonwealth,  23,  177,  187, 

189,  203. 
Lohman  v.  People,  168. 
Long  V.  State,  139,  172,  176,  244,  290, 

293,  376,  427,  556,  569,  570. 
Longworth,  Ex  parte,  328. 
Loper  V.  State,  363. 
Lord  V.  Beard,  526. 

17.  State,  363. 
Love  V.  State,  547. 
Lovelady  v.  State,  540. 
Lovell  V.  State,  274. 
Lovett  V.  State,  508. 
Lowenberg  v.  People,  32. 
Loyd  V.  Hannibal  &  St.  J.  R.  Co.,  341, 

342,  347. 
Loza  V.  State,  245. 
Luby  V.  Commonwealth,  175,  207. 
Lucas  V.  State,  119. 
Luker    v.   Commonwealth,  441,   449, 

454,  455. 
Lum  V.  State,  578. 
Lumm   V.   State,  317,  322,  325,  326, 

328,  330. 
Lumpkin  v.  State,  558,  559. 
Lutz  V.  Conimonwealtii,  289. 
Lynch  v.  Commonwealth,  51,  155,  230, 

379,  .382,  383. 
V.  People,  317,  321,  325,  329. 
V.  State,  177,  190,  191,  348,  349, 

470,  477. 
Lyon  V.  Lyon,  546. 

V.  State,  80,  81,  83. 
Lytte  V.  State,  240,  242,  247. 


XXXVIU 


TABLE  OF  CASES. 


M. 

Mackey  v.  State,  144. 
Macklin's  Case,  81. 
Maconnehey  v.  State,  248. 
Maddy's  Case,  155. 
Maher  v.  Comstock,  .355. 

V.  People,  09,  70,  71,  81,  142,  144, 

155,  175,  203,  53G,  537,  583. 
V.  State,  407. 
Malione,  Ex  parte,  326. 
Major  V.  State,  334. 
Malin  v.  Malin,  547. 
Malison,  In  re,  317,  318. 
Malone  v.  State,  174,  193,  244,  245. 
Manhattan  Ins.  Co.  v.  Broughton,  52. 
Manning's  Case,  222. 
Maples  V.  State,  479,  480,  481. 
March  v.  Walker,  17. 
Marcum  v.  Commonwealth,   175,  204, 

441. 
Marion  r.  State,  515,  516,  533,  542,  543. 
Marks,  Ex  parte,  328. 
Marler  v.  State,  461,   511,  51-3,   517, 

559,  588. 
Marnoch  v.  State,  178. 
Marnock  v.  State,  501. 
Marsh  v.  Mitchell,  239. 
Marshall  v.  State,  236,  239,  564,  569, 

581. 
Martin  v.  State,  193,  344,  371,  381,593. 
Marts  V.  State,  458,  459. 
Mask  V.  State,  312,  314,  513,  583. 
Massengale  i'.  State,  562,  570. 
Massey  v.  State,  549. 
Mastronada  v.  State,  354,  357. 
Matchin  v.  Matchin,  546. 
Maton  I'.  Peoples,  373. 
Matthews  v.  State,  545. 
Maurer  v.  People,  375,  376,  381,  388. 
Maxwell  v.  State,  462. 
May   V.   People,   404,   407,  457,  459, 

460,  540. 
V.  State,  178, 204, 440, 444, 576, 579. 
Mayes  v.  People,  70,  77,  439. 

V.  State,  438. 
Mayfiehl  v.  State,  429,  430,  583. 
Mays  V.  Comnionwealtli,  388. 
Mc.\dams  v.  State,  07,  69,  80, 104,  279. 
McAllister  v.  State,  .35. 
McAnally  v.  State,  513. 
McCall  V.  United  States,  .363. 
McCandless  v.  McWha,  27. 
McCitnn  V.  People,  570. 
McCarty  v.  People,  483,  484. 


McCarty  v.  State,  232,  243, 
McCauley  v.  United  States,  358. 
McClackey  ;;.  State,  527. 
McConkey  v.  Commonwealth, 
McConnell  v.  State,  279,  283,  418,  579. 
McCorkle  v.  State,  379,  380. 
McCoy,  V.  State,  72,  77,  78,  91,  149, 

151,  320,  362,  .364. 
McCrary,  Ex  parte,  320. 
McCreary  v.  Commonwealth,  408. 
McCue  V.  Commonwealth,  81, 118,  519. 
McCuUoch  V.  State,  539,  540,  541,  556. 
McCullough  V.  State,  583. 
McDaniel  v.  State,  13,  14,  17,  66,  76, 
104,  105,  157,  212,  420,  483, 
538,  581,  583. 
McDonald  (••.  State,  414. 
McDonough  v.  McNeil,  414. 
McDougal,  538. 
McGee  v.  State,  310. 
McGehan,  Ex  parte,  367. 
McGinnis  v.  State,  501,  528,  536. 
McGlothlin  v.  State,  648. 
McGuffie  V.  State,  149,  151,  591. 
McGuire  v.  State,  392. 
Mclntyre  v.  People,  232,  237,  244,  245, 

373. 
Mc Jenkins  v.  State,  352. 
McKee  v.  People,  556. 
McKeen  v.  State,  126. 
McKenzie  v.  State,  69,  104,  231,  239, 

538. 
McKenna  v.  People,  457,  459. 

V.  State,  569. 
McKinney  v.  People   362. 

V.  State,  67,  144,  161. 

V.  Western  Stage  Co.,  355. 
McLain  v.  State,  341,  564,  570. 
McLaughlin  v.  State,  579. 
McLaurin  i'.  State,  579. 
iMcLcan  v.  State,  405,  440. 
McManus  v.  State,  142,  143,  172,  475, 

476,  515. 
McMeen  i-.  Commonwealth,  472,  501, 

570,  571. 
McMillan  i-.  State,  68,  595. 

V.  State,  427. 
McNabb  i'.  Lockhart,  342,  347. 
McNaghten's  Case,  538. 
McNcvins  v.  People,  583. 
McPherson  v.  State,  94,  164,  174,  179, 

203,  208,  310,  533,  591. 
McQueen  v.  State,  105,  119. 
McQuillen  v.  State,  376. 
McKae  v.  State,  491. 


TABLE   OF   CASES. 


XX  XIX 


McWhirt's  Case,  90, 119, 139,  142,  579. 
Meade's  Case,  211. 
V.  Walker,  387. 
Means  v.  State,  531. 
Meece  v.  Commonwealth,  591. 
Meiers  v.  State,  290. 
Melton  V.  State,  ,147,  149,  156. 
Mercer  v.  State,  232,  239,  250. 
Meredith  v.  Commonwealth,  176. 
V.  Sanders,  355. 
V.  State,  30,  31. 
Merrick  v.  State,  304. 
Merrick  v.  State,  290,  291. 
Metzger  v.  State,  547,  549. 
Menly  v.  State,  333. 
Mj'ers  V.  Commonwealth,  561,  570. 
Middleton  v.  State,  558. 
Miller  v.  Miller,  546. 

V.  People,  30,  548,  549. 

V.  State,    80,  102,  104,  105,  118, 

143,  328,  363,  368,  369,  469, 

470,  547,  549. 
V.  Territory,  565,  567,  570. 
Mills  V.  Alexander,  356. 

V.  State,  274. 
Milton  r.  State,  77,  99,  109,  112. 
Mimms  v.  State,  400,  420,  461,  472, 

493,  494. 
Minich  v.  People,  351,  353,  362,  364, 

420. 
Minton  v.  Commonwealth,  175. 
Mitchell  V.  State,  12,  17,  77,  104,  107, 

116,  168,  174,  203,  274,  279, 

286. 
Mitchum  v.  State,   31,    80,  105,  304, 

305,  346,  347,  542,  543,  563, 

564,  569.  , 

Mix  V.  McCoy,  231. 
Mixon  V.  State,  496. 
Mize  V.  State,  174,  190. 
Mockabee  v.  Commonwealth,  92,  441. 
Moeck  V.  People,  440. 
Mohan's  Case,  320,  321. 
Moke  V.  Brackett,  356. 
Monroe  v.  State,  157,  172,  174,  212, 

405,  412,  427,  582,  583. 
Montgomery  v.  State,  142,   169,  440, 

441. 
Moon  V.  State,  80,  239,  563,  569,  242, 

244,  247. 
Moonej'  v.  State,  239. 
Moore,  Ex  parte,  73,  80,  142,  148,  317, 

318,  321,  .326. 
V.  State,  97,   154,  317,  330,  443, 

458,  462,  475,  533. 


Morehead  v.  State,  548. 
Morgan  v.  Commonwealth,  494. 
V.  Durfee,  208,  209,  213. 
V.  Hugg,  341. 

V.  State,  405,- 440,  544,  589. 
Moriarty  v.  State,  428,  433. 
Morman  v.  State,  282,  591. 
Morris  v.  Piatt,  31,  174. 
Morrison  v.  McKinnon,  393. 

V.  State,  173,  203,  205,  231,  235, 

342,  389,  390,  519. 
Morrow  v.  State,  417. 
Morse  v.  Crawford,  527. 
Mortimer  v.  Mortimer,  547. 
Mosby,  Ex  parte,  326. 
Mose  V.  State,  358,  446,  479,  503,  544, 

545,  547,  569. 
Moses  V.  State,  362. 
Moss  V.  Commonwealth,  404,  405,  406. 
Moyler  i-.  Moyler,  546. 
Moynahan  v.  People,  304,  305. 
Mo'ynihan  r.. State,  39,  55,  103,  106, 

109,  127. 
Munich  v.  State,  363. 
Murphy  v.  Commonwealth,  265,  266, 

388. 
V.  People,  76,  77,  80,  84,  139,  140, 

175,  190,  366,  387,  440,  479, 

483,  489,  505,  513,  514,  530, 

552. 
!;.   State,  80,   139,   140,   141,  142, 

143,  173,  174,  201,  396,  397, 

647,  549,  556,  591. 
Murray  v.  Commonwealth,  177. 

V.  State,  81,  395,  536,  537,  583. 
Musick  V.  State,  104,   107,  117,   119, 

120,  124. 
Mutual  Life  Ins.  Co.  of  N.  Y.  v.  Terry, 

50. 
Mj'ers  r.  People  274. 

V.  State,  173,  177,  190,  196,  354, 

355,  357,  372,  558. 


N. 


Nash  V.  State,  261. 

Naughton  v.  Stagg,  348. 

Neagle,  In  re,  1^15,  16. 

Neal  V.  State,  404. 

Neales  v.  State,  388. 

Nelson  v.   State,   164,   166,   257,  294, 

442,  447,  501,  555,  575,  576. 
Nesbit  V.  State,  546. 
Nettles,  Ex  parte,  440. 


xl 


TABLE   OF   CASES. 


Neville  v.  State,  591. 

Nevling  v.  Commonwealth,  103,  107, 

115. 
Newcomb  v.  State,  429,  459,  472,  523, 

500. 
Newton  v.  State,  84,  523. 
Nicholas  i'.  Commonwealth,  09. 
Nichols   I'.   Commonwealth,  105,  144, 

239,  401. 
r.  People,  457,  459. 
V.  State,  235,  239,  240,  242,  246, 

247,  280. 
V.  Winfrey,  176. 
Nicholson  v.  State,  548. 
Niland  v.  State,  147. 
Nixon  V.  State,  365,  366. 
Nobles  v.  State,  217,  366. 
Noftsinger  v.  State,  469,  470,  556. 
Nokes  V.  State,  362. 
Nolan  V.  State,  375,  382. 
Nolen  V.  State,  351,  549. 
Noles  V.  State,  13,  14,  90,  93,  157, 174, 

217,  274,  279,  301,  302,  400, 

401,  420. 
Nomaque  v.  People,  382. 
Norton  v.  Moore,  527. 

V.  People,  134. 
Nutt  V,  State,  302,  -36.3. 
Nye  V.  People,  100,  141,  583. 


O. 

O'Brien  v.  People,  32,  248,  304,  527, 

548. 
O'Connell  v.  People,  537,  560. 

V.  Queen,  356. 

V.  State,  298,  299,  576. 
O'Connor,  Ex  parte,  317,  319. 

V.  State,  170,  402. 
Oder  V.  Commonwealth,  192. 
Odle  V.  State,  404,  40(!. 
Odor  V.  Commonwealth,  175. 
Ogdcn  V.  State,  304. 
Ogle  V.  State,  404. 
Ogletree  v.  State,  537. 
O'lTerrin  v.  State,  2.32,  246,  248. 
O'Kelly  V.  Territory,  280. 
Olivares  v.  State,  5(io. 
Olivaries  i:  State,  56,  57. 
Olive  V.  State,  290,  305,  557. 
Oliver  r.  State,  12,  13,  10,  17,  18,  80, 

157,  173,  207. 
O'Mara  v.  Commonwealth,  470. 
Oneal  v.  State,  17. 


Onyby's  Case,  70,  71,  72. 

Opinion  of  Justices,  351,  387,  388. 

Orman  i-.  State,  147,  148,  178,  204. 

Ormsby  v.  Johnson,  346. 

Ortwein   v.   Commonwealth,   51,    538, 

562,  570. 
Osborn  v.  State,  376.. 
Osborne  v.  State,  104,  106,  107,  117. 
Otmer  v.  People,  504,  569. 
Outlaw  V.  State,  2.32. 
Overman  v.  State,  504,  569. 
Owen  V.  State,  547,  549. 


Packer  v.  People,  311. 
Page  V.  Price,  321. 

V.  State,  304,  305,  306. 
Palmore   r.   State,  80,  82,  102,  106, 

108,  174.  179,  426,  428. 
Panton  r.  People,  175. 
Pardee  i\  Smith,  268. 
Parker  v.  State,  170,  177, 178,  207,  396. 
Parks  V.  State,  204,  591. 
Parmele  v.  Guthery,  392. 
Parrish  v.  Commonwealth,  209,  213. 

V.  State,  176,  203,  395,  591. 
Parsons  v.  Commonwealth,  175,  192. 

v.  State,  38. 
Partce  v.  State,  559. 
Pate  >:.  State,  351. 
Patillo  V.  State,  178,  187. 
Patten  v.  People,  173,  176,  204,  207, 

208. 
Patterson  v.  Arnold,  355. 

V.  People.  1"7,  373,  521,  536. 

V.  State,  143,  144,  232,  457,  459. 
Pattison,  Ex  parte,  323. 
Paul  V.  State,  541. 

Payne   v.    Commonwealth,    176,   457, 
569. 

V.  State,  240,  243,  428,  430,  579. 
Peak  V.  State,  441. 
Pearson's  Case,  155,  231,  233,  236. 
Peck  V.  State,  178,  190. 
Peden  v.  State,  129. 
Peebles  v.  Horton,  346. 
Peiffer  v.  Commonwealth,  404,  405. 
Pelham  v.  Page,  410. 
Penland's  Case,  178,  190,  191. 
Pcnn  V.  State,  378,  472. 
Pennsylvania  v.  Bell,  277. 

r.' Lewis,  26,  139,  164,  231,  235. 

V.  McFall,  243,  245. 


TABLE   OF   CASES. 


Xli 


Pennsylvania  v.  Robertson,  IG. 
Penrod  v.  People,  304. 
People  V.  Abbott,  440,  443,  551,  552. 
0.  Adams,  6,  34,  42. 
V.  Ah  Ciioy,  471. 
V.  Ah  Dat,  440,  444. 
V.  Ah  Fat,  35,  312. 
V.  Ah  Fook,  341,  345. 
V.  Ah  Fung,  509. 
V.  Ah  Hop,  310,  347. 
V.  Ah  How,  545. 
V.  Ah  Kong,  88,  536. 
V.  Ah  Ping,  128. 
V.  Alivitre,  428,  431,  432. 
V.  Alviso,  372,  373,  540. 
V.  Anderson,  174,   194,   195,  427, 

441,  456. 
V.  Arnold,  536. 
V.  Aro,  2,  34,  65,  298. 
V.  Austin,  29,  67,  139,  177. 
V.  Badgely,  546. 
V.  Baird,  386,  388. 
V.  Barker,  523. 
V.  Barric,  547,  549,  550. 
V.  Barry,  80,  174. 
V.  Batchelder,  174. 
V.  Bealoba,    103,    104,    106,    109, 

127,376,  531,  532. 
V.  Beauchamp,  382. 
V.  Beckwith,   103,    105,   107,  112, 

113,  539,  540,  541,  566,  570. 
V.  Belencia,65,  76,  99,  239,  242, 

244,  250. 
V.  Bell,  528. 
V.  Bemis,  290. 

V.  Bennett,  274,  275,  539,  540,  546. 
v.  Best,  582. 
V.  Bezy,  102,  456. 
V.  Biggings,  174. 
V.  Boggs,  593. 
V.  Bonilla,  283. 
V.  Bonney,  404,  535,  587. 
V.  Bowe,  328. 

V.  Bradner,  351,  352,  354,  440. 
V.  Brady,  453,  455. 
V.  Brock,  268. 
V.  Brown,  129. 
V.  Buddensieck,  164. 
V.  Budge,  206. 
V.  Burke,  47. 
V.  Burns,  548. 
V.  Burt,  158,  258. 
V.  Bush,  71,  76, 174,  202,  534,  535. 
V.  Campbell,  174,  203,  278,  429, 

591. 


People  V.  Carkhuff,  437.       - 
V,  Carpenter.  402. 
V.  Cassiano,  250. 
V.  Cavanagh,  239. 
V.  Charles,  376. 
V.  Chin  Mook  Sow,  440. 
V.  Clioiser,  290,  293. 
V.  Chung  Lit,  587. 
V.  Cignarale,  563,  570. 
V.  Clark,  30,  32,  70,  168,  387,  400. 
V.  Cochran,  174. 
V.  Cole,  157,  161,  177,  317,  321, 

322,  327. 
V.  Colt,  290,  291. 
V.  Conley,  300. 
V.  Conroy,  75,  527. 
I'.  Cook,  35,  176,  220. 
V.  Corbett,  351. 
V.  Cornetti,  103, 113. 
V.  Costello,  557,  558,  559. 
V.  Cotta,  103,  104. 
V.  Cotteral,  30. 
V.  Coughlin,   176,  208,   407,  479, 

536. 
V.  Courtney,  559. 
V.  Cox,  276,  289,  298,  300,  303. 
V.  Cronin,  65,  290. 
V.  Crowey,  72,  139. 
V.  Crowy,  140. 
V.  Cuintano,  272. 
V.  Cummins,  239,  249. 
V.  Cunningliam,  322. 
V.  Curling,  29. 
V.  Curtis,  462. 
I'.  Damon,  392, 
V.  Dane,  342. 
V.  Davis,  277,  283,  285,  441,  443, 

557,  559. 
V.  Deacons,  95,  96,  103,  107,  112, 

479,  528,  539,  541. 
r.  De  La  Cour  Soto,  279. 
V.  Divine,  68,  212, 
V.  Dixon,  316. 
V.  Doe,  16,  18,  65,  176. 
V.  Dolan,  279,  280,  287,  310,  392. 
V.  Douglass,  410,  411. 
r.  Dowd,  209. 

V.  Doyell,  65,  118,  119,  121. 
V.  Draper,  408. 
V.  Driscoll,  496,  497. 
V.  Drury,  267. 
\.  Druse,  457,  459,  460,  479,  544, 

548. 
V.  Dunn,  278,  389. 
I',  Eastwood,  248. 


xlii 


TABLE   OF   CASES. 


People  V.  Enoch,  279. 
V.  Estrado,  555,  576. 
V.  Evans,  558. 
17.  Everhardt,  402,  559. 
V.  Fernandez,  528. 
V.  Ferris,  239,  250. 
V.  Finley,  230,  231,  239,  538. 
V.  Fisher,  387. 
V.  Flanagan,  212,  213. 
V.  Foley,  407,  468,  479,  480,  481, 

482,  523,  524. 
V.  Fong  Ah  Sing,  443,  573. 
V.  Folmsbee,  328. 
V.  Foren,  99. 
V.  Free,  1,  32,  139,  140. 
V.  Freeland,  144,  304. 
r.  Frost,  3(57. 
V.  Fuller,  97,  1G2,  164,  165,  246, 

367. 
V.  Gaines,  351. 
V.  Garbutt,  232, 234,  239,  246,  428, 

456,  483,  537. 
V.  Gardiner,  264. 
V.  Garvey,  555. 
V.  Gates,  554. 

V.  Gatewood,  174,  203,  273. 
V.  Geiger,  491. 
V.  Gelabert,  547,  556. 
V.  Genet,  128. 

V.  Giancoli,  261,  279,  470,  582. 
V.  Gibson,  76,  536. 
V.  Giesea,  367. 
V.  Gill,  34,  44,  45,  65. 
V.  Gleason,  268. 
v.  Glenn,  420,  440. 
r.  Gonzales,   174,   202,   204,   280, 

582,  586. 
...  Goodwin,  320,  324,  327,  329. 
V.  Goslaw,  563,  569. 
V.  Gray,  408,  410,  440. 
V.  Green,  441,  556. 
V.  Grigsby,  118. 
V.  Grunzig,  441. 
V.  G nance,  103. 
V.  Hall,  421,  526. 
V.  Ilaniblin,  103. 
V.  Hainniill,  231,  232,  245,  483. 
V.  Harper,  177,  203. 
V.  Harriden,  544. 
V.  Harrington,  375. 
V.  Harris,  240,  242,  244,  400. 
V.  Hartnng,  41o. 
V.  Haun,  65,  98,  99. 
i;.  Haynes,  275. 
V.  Hennessey,  546. 


People  V.  Herbert,  174. 
V.  Herrick,  30. 
V.  Hodgdon,  440,  444. 
V.  Hong  Ah  Duck,  290,  535. 
V.  Honshell,  30,  31,  213. 
V.  Horton,  155,  157,  208,  210. 
V.  Howell,  373. 
V.  Hurley,  17,  174,  203,  230. 
V.  Hurtado,  155. 
V.  Hyler,  316,  322. 
V.  Jaehne,  546. 
V.  Jamarillo,  141. 
t).  Jefferds,  321,  329. 
V.  Jenness,  558. 
i;.  Jim  Ti,  547. 
r.  Johnson,  32,  547,  556. 
V.  Jones,  237,  239. 
V.  Judd,  294. 
V.  Keefer,  31,  128. 
V.  Keenan,  347,  348,  349. 
V.  Kelley,  2,  555. 
V.  Kelly,  34,  298,  576. 
V.  Kemmler,  434,  523. 
V.  Kennedy,  386. 
V.  Kern,  519. 
t'.  Kiernan,  105,  107. 
1-.  King,  232,  242,  244,  287,  290. 
V.  Kirby,  30,  77. 
V.  Kleim,  227. 
V.  Knapp,  40,  441. 
V.  Knickerbocker,  441. 
V.  Kohler,  376. 
V.  Lachanais,  581. 
V.  Lake,  526. 

V.  Lamb,  81,   174,  177,  187,   189, 
201. 

V.  Lambert,  546. 

V.  Lane,  541,  546. 

V.  Langton,  231,  235 

V.  Laurence,  438,  533. 

V.  Lee,  273,  389, 890, 440,  443,  594. 

V.  Lee  Chuck,  426,  430. 

V.  Lee  Fat,  375. 

V.  Lee  Sare  Bo,  410,  453,  454. 

V.  Leith,  40. 

V.  Lennox,  357,  358. 

V.  Lewis,  2.32,  242,  435. 

V.  Lilly,  176,  204. 

V.  Lloyd,  279,  286,  287,  289. 

V.  Lockwood,  304. 

V.  Lohman,  317. 

V.  Lombard,  427,  456. 

V.  Lyons,  499,  500,  563,  570. 

V.  Majone,  72,  75,  103,  107,  112. 

V.  March,  77,  80,  139,  140,  591. 


TABLE    OF    CASES. 


xliii 


People  r.  Marquis,  591. 
V.  Martin,  05. 
V.  Mather,  258. 
V.  McCann,  538,  560. 
V.  McCarthy,  3U9,  310,  438,  530. 
V.  McCoy,  353. 
V.  McCraney,  264. 
V.  McCrory,  354. 
V.  McCurdy,  205,  266,  505. 
V.  McDonell,  538. 
V.  McDonnell,  311,  538. 
V.  McDowell,  309. 
V.  McFall,  544. 
V.  Mclntyre,  373. 
V.  McKay,  410. 
V.  McLaughlin,  444. 
V.  McLeo(],20,21,66, 177,192,263, 

317,  320,  325. 
V.  McMahon,  548,  552,  554. 
V.  Mellor,  265. 
V.  Milgate,  77,  139,  140. 
V.  Millard,  421. 
V.  Miller,  258,  383. 
V.  Moan,  35,  457,  458,  459. 
V.  Moice,  272,  339. 
V.  Mondan,  548. 
j;.  Montgomery,  404. 
V.  Moore,  65,  105,  582. 
V.  Morine,  174. 
V.  Murback,  144. 
t'.  Murphy,  556. 

V.  Murray,  279,286,  416,  417,  457. 
V.  Myers,  536,  561. 
V.  Navis,  550. 
V.  Nichol,  127,  246. 
V.  Noll,  358. 
V.  O'Brien,  557. 
V.  O'Connell,  239. 
V.  Odell,  239,  242,  244,  247. 
V.  Ogle,  470,  471. 
V.  Olmstead,  58,  441,  528,  529. 
V.  Ohvell,  358. 
V.  O'Xeil,  388,  400. 
V.  Ormsby,  380. 
V.  Palmer,  539,  540,  541. 
V.  Parton,  547. 
V.  Payne,  174,  194,  195,  213. 
V.  Penhallow,  387. 
V.  Perdue,  174,  328. 
V.  Perkins,  379,  382. 
V.  Perry,  317,  320,  327,  441. 
V.  Phillips,  548. 
V.  Pine,  232. 
V.  Pool,  65,  216,  510. 
V.  Porter,  232,  237. 


People  V.  Potter,  100,  465. 
i;.  Quin,  583. 
V.  Quincy,  582. 
V.  Ramirez,  440,  453,  455. 
V.  Katen,  535. 
.      V.  Rector,  101,  205. 
V.  Reich,  564,  509. 
V.  Restell,  555. 
V.  Reynolds,  402. 
V.  Robertson,  174,  179,  202. 
V.  Robinson,  231,  232,   235,   236, 

242,  245,  251,  301,  302. 

V.  Rogers,  231,  232,  235,  236,  239, 

243,  245,  246,  248,  250,  469, 
551. 

V.  Rugg,  591. 

V.  RuUoff,  388. 

V.  Ruloff,  546. 

V.  Ryland,  557,  558. 

V.  Sanchez,  84,  155,  157,  440. 

V.  Sanford,  301,527. 

V.  Santvoord,  257. 

V.  Schn)idt,  283. 

V.  Schryver,  206. 

V.  Schuyler,  525,  526,  536. 

V.  Schweitzer,  558. 

V.  Scoggins,  174,  190,  429. 

V.  Scott,  174,  196,  199. 

V.  Sessions,  169,  309,  310. 

V.  Shafer,  405. 

V.  Shattuck,  317,  325, 

V.  Shay,  80,  90. 

V.  Sheriff,  104,  167. 

V.  SherifE  of  Westchester  Co.,  97. 

V.  Shorter,  177. 

V.  Shufelt,  366. 

t'.  Simonds,  531. 

V.  Simons,  174,  181,  202. 

V.  Simpson,  441,  443. 

V.  Sing  Lum,  375,  376. 

V.  Skeehan,  103,  107,  114. 

V.  Smith,  388,  421,  501,  502,  647, 

555. 
V.  Soto,  555. 
V.  Special  Sessions,  388. 
V.  Stanley,  556. 

V.  Steventon,  65,  289,  290,  294. 
I'.  Stewart,  483. 
V.  Stock,  457. 
I'.  Stockham,  372. 
V.  Stone,  574,  588. 
V.  Stonecifer,  174,  201,  499. 
V.  Sullivan,  17,  74,  75,  106,  166, 

177,  203. 
V.  Taing,  428. 


xliv 


TABLE   OF   CASES. 


People  V.  Tamkin,  174.  190,  191. 

V.  Taniiaii,  177,  203. 

V.  Taylor,  07,  440,  472. 

V.  Thorns,  548. 

I'.  Thrall,  545. 

V.  Thurston,  274,  275,  521, 

V.  Tidwell,  336. 

r.  Tinder,  317,  325. 

V.  Travis,  17. 

V.  Trim,  30,  381. 

V.  Turcott,  434. 

V.  Turley,  144,  147,  149,  153. 

V.  Tyler,  44. 

V.  Urias,  283,  285. 

V.  Vail,  376. 

V.  Van  Brunt,  72. 

V  Vance,  283,  287,  389. 

V.  Van  Home,  310,  321,  325. 

V.  Van  .Steenburgh,  106. 

V.  Vasquez,  129. 

V.  Vernon,  440. 

t'.  Wallace,  276, 289,  298,  300, 303. 

V.  Walsh,  174,  208,  210. 

V.  Walter,  579. 

V.  Warren,  273. 

V.  Welch,  343, 582. 

V.  Wentz,  548,  549,  550,  552. 

V.  Westlake,  174,  181,  191,  202, 
636. 

V.  Whipple,  557. 

V.  White,  277. 

V.  Willett,  279. 

V.  Willey,  232. 

V.  Williams,  174,  231,  235,  239, 
242,  244,  245,  246,  248,  250, 
427,  523,  524,  5-32,  543,  582. 

V.  Willson,  523,  525,  563, 564, 570. 

V.  Wilson,  308,  421,  528,  529. 

V.  Wolcott,  548,  549. 

V.  Wong  Ah  Teak,  174,  202. 

V.  Woods,  396. 

V.  Woody,  127,  128,  569. 

V.  Wreden,  527. 

V.  Wynian,  472,  557. 

V.  Ybarra,  289,  440,  443. 
Peoples  V.  Commonwealth,  440,  451, 

454. 
Peri  V.  People,  09,  105. 
Perkins  (;.  Guy,  .342,  343. 

V.  State,  275,  475. 
Perry,  In  re,  318. 

V.  State,  65,  141,  142,  536,  537. 
Perryman  v.  State,  304. 
I'erteet  t'.  People,  331. 
Peter  y.  State,  87,  158,  159. 


Peterson  v.  State,  280,  290,  293,  311, 

363,  394,  556. 
Petite  t'.  People,  341,  346. 
Petty  V.  State,  118. 
Pfomer  v.  People,  177,  583. 

V.  State,  188. 
Phadenhauer  v.  Germania   Life   Ins. 

Co.,  50. 
Pharr  v.  State,  104,  106,  107,  118,  128, 

178,  476,  478,  576. 
Phelps  r.  State,  76,  133. 
Philips  r.   Commonwealth,    176,    204, 

207. 
V.  Louisiana  Equitable  Life  Ins. 

Co.,  50. 
Phillips  V.  Commonwealth,  17. 

V.  State,  126,  130,  425,  462,  518. 
Pickins  v.  State,  84,  91.    , 
Pickett  V.  Legerwood,  356.     . 
Pidcock  V.  Potter,  527. 
Pierce  v.  State,  239,  301. 
Pierson  v.  People,  388,  517,  523. 

V.  State,  174,  203,  334,  343,  344, 

582. 
Pigman  v.  State,  235,  240,  242,  247. 
Pinkard  v.  State,  126. 
Piper  V.  Menifee,  26. 
Pirtle  V.  State,  231,  232,  235,  240,  243, 

245,  248,  250. 
Pistorius  v.  Commonwealth,  177. 
Pitman  v.  State,  429,  461. 
Pitts  i:  State,  425,  540,  546,  563,  569. 
Plusters  V.  State,  178,  458,  459,  460. 
Pliemling  v.  State,  125. 
Plummer's  Case,  162. 

V.  Commonwealth,  128. 
V.  State,  226,  227,  311. 
Pocket  V.  State,  243. 
i  Poe  1-.  State,  565,  568,  570. 
Pogue  I'.  State,  565. 
Poiudexter  v.  Commonwealth,  392. 
j  Polin  V.  State,  504,  527,  560,  569. 
I  Pond  V.  People,  12,  13,  172,  173,  176, 

187,  203,  204,  207,  208,  209, 

215,  220. 
Poole  V.  State,  286. 
Pope  V.  State,  411. 
Porter  v.  State,  547,  549, 
Portland  v.  Bangor,  388. 
Poteete  t'.  State,  158,  159. 
Potsdamer  v.  State,  393. 
Potsdamery  v.  State,  391. 
Potter  V.  State,  579,  580. 
Potts  V.  House,  527. 
Pound  I'.  State,  17,  456,  457,  499,  500. 


TABLE   OF   CASES. 


xlv 


Powell  V.  Gott,  355. 

V.  State,  426,  429,  519,  527. 

V.  United  States,  351. 
Powers   V.  State,  142,  o52,  440,  475, 

558. 
Presley  v.  State,  106,  109. 
Pressley  v.  State,  582. 
Preston  v.  State,  144,  491. 
Preuit  I'.  People,  77. 
Price  v.  Commonwealth,  341. 

V.  State,  222,  379,  382,  383,  421, 
548,  554. 
Priest  V.  State,  479,  483,  540. 
Primus  v.  State,  104,  127. 
Prine  v.  Commonwealth,  351  375,376, 

379,  380,  383. 
Prior  V.  State,  501. 
Pritchett  v.  State,  174,  426. 
Proctor  V.  De  Camp,  342,  343. 
Proofer  v.  Reg.,  420. 
Prooper  v.  Reg.,  409. 
Puett  V.  Beard,  352. 
Pugh  V.  State,  237. 
Purinton  v.  Humphreys,  411. 
Parley  v.  State,  102. 
Puryear  v.  Commonwealth,  290,  294, 
341,  391,  433,  442,  454. 

V.  Reese,  526. 


Q. 

Quaife  v.  Chicago  &  N.  W.  R.  Co.,  526. 
Queen  v.  Carden,  266. 

V.  Jacobs,  542. 

V.  O'Connell,  356. 
Quinn  v.  State,  405. 


R. 

Radford  v.  Commonwealth,  583,  586. 

Rafe  V.  State,  547. 

Rafferty  v.  People,  92,  232,  239,  242, 

246,  331. 
Rakes  v.  People,  441. 
Rambler  v.  Try  on,  526. 
Ramscar,  In  re,  267. 
Randolph  v.  Commonwealth,  271. 
Randon,  Ex  parte,  318,  319. 

Ex  parte,  326. 
Rapp  17.  Commonwealth,  144,  176,  427. 
Rash  V.  State,  528. 
Rasnick  v.  Commonwealth,  126. 
Ratcliff's  Case,  336. 
Rather  u.  State,  231,  235,  283, 538,  565. 


Ray  V.  State,  80,  149. 

Rea  V.  State,  583. 

Read  v.  State,  342,  347. 

Ready  v.  Commonwealth,  317,  318. 

Real  V.  People,  232,  247. 

Record  i'.  State,  363. 

Rector  i'.  Commonwealth,  548,  549. 

Redd  V.  State,  290,  293,  461,  464,  472, 

474,  547,  549,  552,  553. 
Redus  V.  People,  279,  283,  285,  286, 

582. 
Reed  v.  Harper,  232. 

V.  State,  87,   155,   159,  160,  277, 
304,  306,  307,  526,  372. 
Reeves  v.  State,  274. 
Reg.  V.  Alison,  52,  53,  54,  55,  57,  61. 

V.  Allen,  97. 

V.  Andrews,  320,  323,  588. 

I'.  Archer,  97,  157,  164. 

V.  Bannen,  42. 

V.  Barrett,  164. 

V.  Barronet,  316. 

V.  Barthelemy,  316,  320,  32L 

V.  Beckwith,  588. 

V.  Bedingfield,  442,  449. 

V.  Bennett,  2,  61,  373. 

V.  Bird,  42. 

I'.  Blackburn,  136. 

t'.  Blake,  126,  482. 

V.  Bond,  373. 

V.  Bowen,  29. 

i\  Brown,  418. 

V.  Bull,  12,  42. 

V.  Burgess,  49,  60. 

V.  Campbell,  97. 

V.  Caton,  161. 

V.  Caudwell,  384. 

r.  Chapman,  320. 

V.  Clewes,  551. 

V.  Clifford,  127. 

V.  Coulter,  399. 

V.  Crook,  27. 

V.  Croydon,  552. 

V.  Cruse,  40,  246,  247. 

V.  Dadson,  10,  13,  215. 

V.  Dalmas,  442. 

V.  Dant,  42. 

V.  Davis,  250. 

V.  Doody,  60,  241,  243. 

V.  Dorlie,  3. 

V.  Dowling,  394. 

r.  Drew's  Case,  550,  551. 

V.  Dudley,  19,  223. 

V.  Dugal,  3. 

V.  Errington,  162. 


xlvi 


TABLE   OF   CASES. 


Reg.  V.  Fellows,  126. 
V.  Fenety,  68. 
V.  Fisher,  71,  80. 
V.  Fletcher,  35. 
V.  Fretwell,  59,  61. 
V.  Frost,  542. 

r.  Gamlen,  230,  236,  241,  246. 
t;.  Garner,  552. 
V.  Garrett,  47,  48. 
r.  Gaylor,  57,  58,  60,  168. 
V.  Geach,  29. 
V.  Goddard,  449. 
V.  Greenwood,  41. 
V.  Gray,  163,  164. 
V.  Hagan,  215. 
V.  Haines,  29,  163. 
V.  Hai-rington,  207. 
V.  Hearn,  552. 
V.  Hewett,  552. 
V.  Hilliday,  3. 
V.  Hinks,  482. 
V.  Hopley,  169. 
V.  Howell,  29,  40,  442. 
V.  Hubbard,  442. 
V.  Hughes,  163. 
V.  Hunt,  420. 
V.  Hutchinson,  97. 
V.  Jenkins,  442. 
V.  Jessop,  52,  53. 
V.  Jones,  97,  164. 

V,  Kelley,  155. 

V.  Kerr,  392. 

V.  Kirkham,  74,  92. 

V.  Lallement,  31. 

V.  Laugher,  552. 

V.  Layton,  538. 

V.  Leddington,  56,  57,  58,  60. 

V.  Ledger,  35. 

V.  Longbottom,  35. 

V.  Lowe,  163. 

V.  Luckhurst,  549. 

I'.  Manlcy,  42. 

V.  Manning,  136,  137. 

V.  Martin,  4,  164. 

V.  Mawgridge,  31. 

V.  Mnzeau,  127. 

V.  McCanohy,  372. 

V.  McDowell,  81. 

V.  McLeod,  26. 

V.  McMahon,  449. 

V.  Mi'gson,  442. 

V.  Michael,  34,  42,43,  127. 

V.  Monkhouse,  243,  240. 

V.  Mooney,  442. 

I'.  Morgan,  442. 


Reg.  V.  Moore,  241,  243,  247,  259,  550, 
551. 
V.  MuUady,  324. 
V.  Murphy,  355. 
V.  Nichols,  442. 
V.  Noakes,  25. 
V.  Packard,  162. 
V.  Pargeter,  163. 
V.  Peel,  442. 
V.  Perkins,  443. 
V.  Pocock,  2,  5,  40. 
J!.  Price,  40. 
V.  Pym,  35. 
V.  Qualter,  442. 
V.  Reaney,  442. 
V.  Reason,  554. 
V.  Regan,  30. 
V.  Reno,  283. 
V.  Rowtow,  487. 

V.  Scott,  555. 
I'.  Selten,  76. 
V.  Sinclair,  61. 

V.  Skeet,  40,  164. 

V.  Slaven,  126. 

V.  Smith,  81,  145,  442.      ; 

V.  Sparham,  442. 

V.  Spence,  163. 

V.  Spilling,  27. 

V.  Steele,  442. 

V.  Stokes,  538. 

V.  Stubbs,  588. 

V.  Swindall,  35,  97. 

V.  Taylor,  97,  98,  266,  550,  552. 

V.  Thomas,  442. 

V.  Thurborn,  23,  189. 

V.  Towers,  41. 

V.  Trilloe,  6. 

V.  Turner,  11. 

V.  Tyler,  127,  225. 

V.  Valler,  42. 

V.  Whitehead,  27. 

V.  Wliitworth,  442. 

V.  Winegarner,  275. 

V.  Wright,  7. 
Rehberg  v.  Mayor,  341. 
Rcid,  V.  State,  126,  536. 

V.  Strider,  356. 
Reins  v.  People,  404. 
Reneau  v.  State,  11,  159,  216. 
Rennie's  Case,  2.33,  248. 
Respublica  v.  McCarty,  556. 

V.  Mulatto  Rob,  104, 107, 116, 189. 

V.  Weidle,  233. 
Revel,  V.  State,  67,  591. 
Ilex  V.  Alison,  56. 


TABLE   OF   CASES. 


xlvii 


Rex  V.  Appleby,  482. 
V.  Ashee,  60. 
V.  Batt,  29. 
V.  Bennett,  5. 
V.  Berriman,  .304. 
r.  Bishop,  o28. 
V.  Bisliop  of  Rochester,  329. 
V.  Bonner,  443,  444. 
V.  Brain,  6. 
V.  Brisac,  42. 
V.  Brooks,  274. 
V.  Burtlett,  45. 
V.  Carr,  2,  5,  97. 

v.  Carroll,  232,  23.3,  236,  245,  246. 
V.  Carter,  320. 
V.  Cheeseman,  169. 
V.  Christie,  444. 
V.  Clewes,  557. 
V.  Collison,  40. 
V.  Conner,  31. 
V.  Cooper,  42,  134,  550. 
V.  Court,  550. 
V.  Cox,  29. 

V.  Crockett,  442,  444. 
V.  Danby,  317. 
V.  Davis,  29. 
V.  Delaniere,  316,  .321. 
V.  Dixon,  29. 
V.  Dyson,  52,  -54,  57. 
V.  Enoch,  7,  552. 
V.  Fagent,  444. 
V.  Fearnley,  274. 
I'.  Fitzgerald,  3-30. 
V.  Gibbons,  552. 
V.  Giles,  127. 
V.  Giiham,  -551,  554. 
V.  Giilow,  29. 
V.  Gordon,  134. 
V.  Green,  97,  163. 
V.  Grey,  28. 
V.  Griffin,  5.52. 
V.  Grindley,  2.33. 
V.  Hargrave,  4-5,  302. 
V.  Harris,  173. 
r.  Hazel,  1. 

V.  Hay  ward,  70,  72,  442,  444. 
V.  Higgins,  316,  317,  .320,  .321. 
V.  Hodgson,  24. 
V.  Holt,  31.  • 
V.  Hucks,  421. 
V.  Hughes,  61. 
V.  Hull,  162. 
V.  Hunt,  30. 
V.  Jenkins,  552. 
V.  John,  442. 


Rex  V.  Johns,  420,  421,  44.3.   ' 
V.  Jones,  30,  46,  552. 
i>.  Keite,  27. 
V.  Kendal  &  Roe,  321. 
V.  Lanibe,  544. 
V.  Lancaster,  351. 
V.  Lockett,  129. 
V.  Lea  son,  329. 
V.  Leddington,  57. 
V.  Long,  27,  97. 
I'.  Longden,  17. 
V.  Lord,  .321. 
V.  Lynch,  73,  74. 
V.  Macdaiiicl,  43. 
V.  Mackintosh,  .329. 
V.  Marks,  321. 
V.  Martin,  162. 
V.  Mawgridge,  139. 
V.  McDaniel,  36. 
V.  McMakins,  40. 
V.  Mead,  442. 

V.  Meakin,  2,33,  243,  246,  248. 
I'.  Mills,  551. 
V.  Morgan,  321. 
V.  Mosley,  296,  442,  443,  444, 
V.  Murphy,  36,  40,  126,  162,  164. 
V.  Norton,  304. 
V.  Orrery,  329. 
V.  Parratt,  551. 
'V.  Parsons,  126. 
V.  Partridge,  552. 
V.  Passey,  129. 
V.  Pepper,  316,  321. 
V.  Piatt,  329. 
V.  Plumnier,  31. 
V.  Poulton,  6. 
V.  Pountney,  552. 
V.  Reader,  328. 
V.  Rigniaidon,  162. 
V.  Robinson,  .30. 
V.  Russell,  56,  57,  58,  59,  61. 
V.  Saltash,  328. 
V.  Sawyer,  -52. 
V.  Schaife,  443. 
V.  Scofield,  29. 
V.  Scully,  17,  157,  189. 
V.  Self,  .36. 
V.  Sellis,  7. 
I'.  Senior,  27. 
V.  Sexton,  551. 
V.  Shellard,  126. 
V.  Shepherd,  551. 
V.  Simpson,  26,  27,  552. 
V.  Spilsbury,  443. 
V.  Spragg,  384. 


xlviii 


TABLE   OF   CASES. 


Eex  V.  Squire,  30. 
V.  Stacey,  552. 
V.  Standley,  129. 
V.  Steptoe,  557. 
V.  Streek,  379. 
V.  Sullivan,  1G2. 
V.  Svvatkins,  551. 
V.  Taylor,  81. 
V.  Thomas,  230,  232,  233,  235,  236, 

242,  243,  245,  550. 
V.  Thornton,  551. 
V.  Tonilinson,  296. 
V.  Townley,  274. 
V.  Trimmins,  97. 
V.  Turner,  482. 
V.  Tye,  34. 
V.  Van     Butchell,    27,     97,    442, 

443. 
V.  Upchurch,  551. 
V.  Warner,  549. 
r.  Warickshall,  544. 
r.  Webb,  34,  35. 
V.  Welbourn,  420. 
V.  White,  40,  336. 
V.  Whithorne,  29. 
V.  WiIliiani<son,  27. 
V.  Wooilburne,  30. 
V.  Woodcock,  442,  443. 
r.  Wood  fall,  30. 
V.  Wriglit,  527. 
V.  Wyndham,  316,  321,  323. 
V.  Yate,  329. 
V.  Yates,  316. 
Khines  v.  Clark,  387. 
Rhoads  v.  Commonwealtli,  105. 
Khodes  i-.  State,  377,  384. 
Rice  V.  State,  27,  104. 
Richardson  v.  Jones,  411. 
I'.  Richardson,  546. 
V.  State,  147,  508,  530,  569. 
Riddle  V.  State,  283. 
Riggs  I'.  State,  84,  91,  258,  303,  461, 

509. 
Riley  V.  State,  44, 45, 103, 106,  107, 117, 

201. 
Rippy  V.  State,  13,  17,  178,458. 
Ritzman  r.  People,  569. 
Roach  V.  People,  173,  175,  213. 

V.  State,  127,  174,  178,  182,  201, 
202,  304. 
Robbins  i-.  Rohbins,  546. 

V.  State,  204,  441,  583. 
Roberts  V.  Commonwealth,   185,  510, 
603,  569. 


Roberts  v.  Gee,  557. 

V.  People,    232,    235,    240,   243, 

247,  249,  251. 
V.  State,  13,  14,  80,  158,  174,  193, 
194,  402,  428,  579. 
Robertson  v.   State,  39,  55,  97,  164, 

166,  363. 
Robins  v.  State,  282. 
Robinson,  In  re,  324, 
V.  Blen,  556. 
V.  Randall,  399. 
V.  State,  367,  540. 
Rodgers  v.  State,  290. 
Roe's  Case,  321. 
Rogers  v.  People,  243. 

V.  State,  173,  251,  290,  291,  363, 
434. 
Rolfe  V.  Rumford,  346,  347. 
Rolland  v.  Commonwealth,  61. 
Rolls  i".  State,  375,  370,  380,  381,  382, 

384. 
Roman  v.  State,  585. 
Roseborough  i\  State,  90. 
Ross  V.  Crawford  Co.,  387. 

V.  State,  119,  120,  124,  144,  239, 
379,  382,  479,  480. 
Rosser  v.  McColly,  348. 
Rothbaner  v.  State,  596. 
Rothchild  v.  State,  304. 
Roughton  V.  Brown,  355. 
Rounds  V.  State,  336,  401. 
Rowe  V.  State,  411. 
Rowlett  V.  State,  570. 
Roy  V.  Kansas,  311. 

V.  State,  396. 
Ruberts  v.  Commonwealth,  479,  544 

669. 
Rucker  v.  State,  308,  372. 
Rufer  v.  State,  495,  496. 
Ruloff's  Case,  114,  534. 

V.  People,  11,  12,  103,  114,  533, 
534,  539,  540,  546. 
Runnels  v.  State,  547,  549,  557. 
Runyan  v.  State,  175,  180,  204,  205. 
Russell  V.  Commonwealth,  565,  570. 
V.  People,  405. 
V.  State,  456,  501,  560. 
Rutherford    v.    Commonwealth,   376, 
548.  • 

V.  Morris,  527. 
V.  State,  153,  304,  306. 
Ruthford  i-.  State,  149. 
Ryan  r.  Harrow,  410. 


TABLE   OF   CASES. 


xlix 


Saine  v.  State,  275. 

Sampson  v.  State,  545. 

Sanchez  v.  People,  294,  521,  522,  525 

52(5. 
Sanders  v.  State,  227,  231,  239,  355, 

358,  387. 
Santo  V.  State,  206. 
Sartoriores  v.  State,  351. 
Sasse  V.  State,  534. 
Saunders'  Case,  6. 

I'.  Baxter,  342,  347. 

V.  State,  358. 
Savage  v.  State,  256,  275. 
Sawyer  v.  State,  155,  334. 
Sawyers  v.  State,  494. 
Sayres  v.  Commonwealth,  499,  500. 
Scaggs  V.  State,  375,  377. 
Scales  V.  State,  275. 
Schaffer  v.  State,  283,  285. 
Schaller  v.  State,  232,  239,  250. 
Schirmer  v.  People,  377. 
Schlencker  v.  State,  104, 239,  250,  527, 

583. 
Schmidt  v.  Pfeil,  233. 
Schnier  v.  People,  141,  175,  203. 
Schoolcraft  v.  People,  461,  463. 
Schusler  v.  State,  509,  570. 
Scoggin,  Ex  parte,  326. 
Scott  V.  Commonwealth,  230,  280. 

V.  People,  440,  444. 

V.  State,  119,  176,  230,  236,  311, 
334,  362,  565,  570. 
Scripps  ^^  Reilly,  341. 
Seals  v.  State,  142,  145. 
Seams  v.  State,  102, 104,  217,  332,  333. 
Segura  v.  State,  531. 
Self  V.  State,  553. 
Sellers  v.  People,  359. 
Shaffner  v.  Commonwealth,  468. 
Shannahan    v.    Commonwealth,   231, 

235,  239,  243,  245. 
Shapoonmash  v.  United   States,  375, 

376,  377,  378,  384. 
Sharp  v.  State,  77,  173,  207,  283,  473. 
Sharpe  v.  State,  312. 
Shaw  V.  State,  472. 
Shay  V.  Commonwealth,  373. 

V.  People,  290,  292. 
Shelton  v.  State,  104,  117,  531. 
Shepherd  v.  State,  289. 
ShifHet  V.  Commonwealth,  551. 
Shipp  V.  State,  380. 
Shoeffler  v.  State,  555. 

D 


Shoemaker  v.  State,  32,  70,  105,  134, 
334. 

Shoffner  v.  State,  352. 

Shore  v.  State,  100,  317,  320. 

Short  V.  Commonwealtli,  461,  464. 

Shorter  v.  People,  18,  177,  184,  195, 
196,  201. 

Shrivers  v.  State,  279,  476,  478. 

Shufflin  V.  People,  103,  107,  155. 

Shular  v.  State,  271,  341. 

Silgar  V.  People,  144. 

Silvus  V.  State,  172. 

Sim  V.  State,  546. 

Simmerman  v.  State,  89,  92,  341,  345. 

Simmons  v.  Commonwealth,  47,  174, 
192,  376,  495,  548,  549. 
V.  State,  147. 

Simms  v.  State,  310,  396. 

Simon  v.  State,  547. 

Simonds  v.  Henry,  27. 

Simonton,  Ex  parte,  322. 

Simpson's  Case,  249. 

I'.  State,  47,  157,  212,  214,  375, 
378,  384. 

Sims  1-.  State,  178,  190. 

Sindram  v.  People,  457. 

Singleton  v.  State,  104,  106,  107,  118, 
127. 

Skates  v.  State,  368,  370. 

Skidmore  v.  State,  159. 

Slattery  v.  People,  31,  556. 

Slaughter  v.  State,  591. 

Slocovitch  V.  State,  375. 

Small  V.  Commonwealth,  442,  583. 
V.  State,  359,  361. 

Smallman,  Ex  parte,  328. 

Smiley  v.  Burper,  346. 

Smith,  In  re,  317,  318,  366. 

V.  Commonwealth,   60,  185,  231, 
232,  235,  236,  239,  242,  245, 
248,  309,  461,  464,  538,  539, 
540,  541,  544,  546,  549,  550, 
583,  586. 
V.  Kingsle}',  355. 
V.  People,  l5o,  126. 
V.  State,  57,  58,  70,  71,  84,  102, 
103,  104,  105,  107,  110,  120, 
142,  168,  178,  243,  257,  280, 
287,  288,  295,  334,  351,  359, 
360,  366,  377,  382,  397,  401, 
420,  442,  444,  496,  528,  533, 
540,  548,  549,  559,  562,  570, 
583. 

Smiirr  v.  State,  207,  239. 

Sneed  v.  State,  376,  382. 


1 


TABLE   OF   CASES. 


Snyder  v.  State,  282,  508,  555,  583. 

Soquet  V.  State,  523,  524. 

Sorrell's  Case,  265. 

South  c.  People,  541. 

Souther  v.  Commonwealth,  105. 

Sparks  v.  Commonwealth,  55,  97,  162, 

164. 
Spear  v.  State,  540. 
Spearman  v.  State,  156,  178. 
Spears  v.  State,  548,  549. 
Speer  v.  State,  364,  553. 
Speight  V.  State,  542. 
Spence  v.  State,  521,  522. 
Spencer  v.  State,  482,  521. 
Sperry  v.  Commonwealth,  376. 
Spicer  v.  State,  550,  552. 
Spier,  In  re,  349. 

Spies  v.- People,  39,  65,  76,  78,  129, 
140,  132,  133,  193,  218,  260, 
812,  313,  396,  398,  421,  422, 
484,  490,  491,  492,  493,  504, 
570,  571,  572,  582,  587. 
Spivey  v.  State,  457,  501. 
Spradlend,  Matter  of,  330. 
Staff,  In  re,  388. 
Stafford's  Case,  316,  321. 

V.  State,  472,  473,  479,  481,  482. 
Stanley  v.  Commonwealth,  175,  185, 
186,  187. 

V.  State,  104,  106,  107,  118. 
Stanton  v.  State,  582. 
Stapleton  v.  Commonwealth,  368,  369. 
Starkey  v.  People,  421,  440,  444. 
State  V.  Aaron,  556. 

V.  Abarr,  149,  153. 

V.  Abbot,  321,  322,  328. 

V.  Abbott,  178,427,  432,  476,  477. 

V.  Adams,  381. 

V.  Ah  Chuey,  500,  507. 

V.  Ah  liCe,  534,  535. 

V.  Ah  Mook,  105. 

V.  Alexander,  80,  427,  530. 

V.  Alford,  461. 

V.  Allen,  375,  376,  .384,  390,  559, 
588. 

V,  Alman,  375,  386. 

V.  Anderson,  10,  67,  68,  149,  150, 
359,  360,  402,  404,  408,  521, 
565,  568,  569,  570,  571. 

V.  Angel,  304. 

V.  Angelo,  403. 

V.  Anthony,  128,  312. 

V.  Archer,  175,  202,  203. 

r.  Arden,  314. 

V.  Avery,  90,  155,  232,  239,  247. 


State  V.  Babb,  259. 
V.  Babcocik,  404. 
V.  Baber,  411,  526. 
V.  Baker,  298,  300,  301,  404,  406. 
V.  Baldwin,    425,   469,   470,   523, 

525,  527,  531,  532,  583. 
V.  Baldy,  410. 
V.  Bangor,  393,  394. 
V.  Banks,  341,  576. 
V.  Bantley,  35. 
V.  Barfield,  149,  150,  462. 
V.  Barham,  471. 
V.  Barnes,  351,  376. 
V.  Barnett,  384. 
V.  Barnwell,  91. 
r.  Bartlett,  274,  537,  560. 
V.  Bartley,  290. 
V.  Bayonne,  558. 
i;.  Beckham,  201. 
V.  Bcckwith,  177. 
V.  Belcher,  442. 
V.  Belden,  359. 
V.  Bell,  245,  246,  304. 
V.  Belton,  461,  462,  463. 
V.  Benhain,  16,  24,  161,  175,  204, 

226. 
V.  Benton,  31. 
V.  Bertin,  375,  381,  535. 
V.  Bilansky,  290. 
'      r.Birdwell,  428,  457,461. 
V.  Blackburn,  441,  444. 
V.  Blackwelder,  375,  381. 
V.  Blan,  294. 
V.  Bland,  216. 
V.  Blunt,  149,  427,  431. 
V.  Bohan,  175,  188,  440,  444. 
t;.  Boice,  118,  119,  120,  121. 
V.  Bonds,  85. 
V.  Boon,  88,  90. 
V.  Bostick,  547,  549,  551. 
V.  Boswell,  271. 
V.  Bowen,  45,  303,  593. 
V.  Bowman,  556. 
V.  Boyd,  353,  367,  368. 
V.  Boyle,  286. 
V.  Brabson,  307. 
V.  Bradford,  283,  284,  285. 
V.  Bradley,  314,  593. 
V.  Brandon,  157, 212,  230,476,  538. 
i:  Brantley,  513. 
r.  Braunschweig,  382, 
V.  Brewer,  565,  570. 
V.  Brewster,  317,  325. 
V.  Briggs,  362,  364. 
V.  Brinyear,  538. 


TABIiE   OF    CASES. 


State  V.  Briscoe,  536. 

V.  Brittain,  177,  194,  207. 

V.  Brocknian,  548. 

V.  Brodnax,  149. 

V.  Brooks,  371,  393,  394,  428,  495, 

523,  583. 
V.  Brougliton,  555. 
r.  Brown,  40,   76,  103,   106,   107, 

115,  127,  170,  176,  193,  280, 

287,  413,  429,  457,  459,  400, 

544,  545,  547,  550. 
V.  Bruce,  411. 
V.  Brunetto,  441. 
t;.  Brusle,  317,  325. 
V.  Bryant,  427,  457,  466. 
V.  Buclianan,  144,  157. 
V.  Buck,  357. 
V.  Buckner,  376,  382,  394. 
V.  Bullard,  410. 
r.  Bullock,  232,  242,  244. 
V.  Bundy,  231. 
V.  Burgess,  259. 
V.  Burke,  175,  290. 
V.  Burns,  405. 
V.  Butman,  94. 
V.  Byers,  80,  536. 
V.  Byrd,  359,  360. 
V.  Byrne,  583. 
V.  Cadwell,  400. 
r.  Cain,  178,  188,417,421. 
V.  Cameron,  279,  312,  442. 
V.  Cantieny,  152,  441,  443. 
V.  Carlisle,  553. 
V.  Carlton,  438. 
V.  Carman,  388. 
V.  Carr,  549. 
V.  Carrick,  548,  549. 
V.  Carroll,  475. 
V.  Carter,  44,  47,  144,  294. 
■      V.  Cartwright,  375,  376,  378. 
V.  Cassady,  134. 
V.  Castello,  70. 
V.  Center,  164,  442. 
V.  Chadbourne,  401. 
V.  Chambers,  548. 
V.  Chandler,  113. 
V.  Chavis,  88. 
V.  Cherry,  298. 
V.  Christian,  80,  81. 
V.  Chys  Chiagk,  418. 
V.  Claude,  457. 
V.  Clifford,  191. 
r.  Clouser,  509. 
V.  Clum,  428,  433. 
V.  Cobb,  268. 


State  V.  Cockman,  128,  312,  313. 
V.  Cole,  271. 
V.  Coleman,   232,   237,   303,  377, 

520,  538,  501,  502,  583. 
I'.  Collins,  81,  82,  172,  175,  204, 

348,  349,  377,  389,  404,  405. 
I'.  Congdon,  395. 
V.  Conley,  274,  289,  294,  298,  372, 

593. 
V.  Connor,  .328. 
V.  Cook,  394. 
V.  Cooper,  30,  31,  118,  120,  123, 

108,  501,502. 
V.  Corbett,  35,  37. 
V.  Corcoran,  494. 
V.  Costen,  155. 
V.  Covington,  126. 
V.  Cox,  126,  388. 
V.  Cowan,  540,  555. 
V.  Crane,  149,  151. 
V.  Crank,  294. 
V.  Craton,    15,  144,  174,  177,  377, 

384. 
V.  Crawford,  537,  560. 
r.  Crosby,  404. 
V.  Cross,  231,  232,  235,  245,  375, 

370,  377,  382,  434,  483,  484. 
V.  Crowley,  472,  473,  515,  516. 
V.  Crowson,  479. 
V.  Crozier,  280 . 
I'.  Cincuel,  409,  411. 
I'.  Cummings,  303. 
V.  Cunningham,  558. 
V.  Curry,  91,  152. 
V.  Curtis,  101,  103,  105,  107,  111, 

118,  120. 
V.  Cutter,  275. 
r.  Danby,  538,  561. 
V.  Daniel,  328,  444. 
V.  David,  375,  379. 
i:  Davidson,  170,  546. 
V.  Davis,  120,  155,  157,  280,  388. 
V.  Day,  549,  550. 
V.  Dearing,  232,  583. 
V.  Decklotts,  13,  07,  09,  80,  105, 

119,  142,  204,  375,  380. 
V.  Degonia,  340,  347. 
V.  Denkins,  420. 
V.  Dennison,  359,  360. 
V.  Dent,  542. 
V.  Desmond,  404. 
V.  Devlin,  438. 
V.  Dew,  326. 

V.  Dickinson,  168,  169,  442. 
V.  Dieckman,  103,  108,  111. 


Hi 


TABLE   OF   CASES. 


State  V.  Dierberf;:er,  215. 
V.  Dildy,  479. 
V.  Dillahunt,  247,  248. 
V.  Dillihunt}-,  583. 
V.  Dillon,  290,  536. 
V.  Dixon,  177,  204. 
V.  Dodson,  348,  427. 
V.  Doherty,  550. 
t>.  Donnelly,  203,  205,  528,  583, 

585. 
V.  Donovan,  238. 
V.  Doolittle,  372,  373. 
V.  Dooley,  375. 
V.  Dooly,  370,  384. 
V.  Douglass,  07,  77,  81. 
V.  Dowd,  105,  100,  591. 
V.  Downham,  149,  153. 
V.  Downs,  167,  176,  427,  428,  429. 

457,  462,  578. 
V.  Drake,  401. 

V.  Draper,  144,  441,  446,  538. 
i;.  Dufour,  471,  508. 
V.  Dugan,  94,  208,  210,  226. 
V.  Duniphey,  287,  392,  429,  457, 

483. 
V.  Dunkley,  (!(!,  307,  308. 
V.  Dunn,  72,  103,  105,  144,  .588. 
V.  Duvall,  283,  284,  286. 
V.  Earnest,  106,  111. 
V.  Easter,  272. 

V.  Eaton,  176,  194,  283,  285,  298. 
V.  Edmundson,  294. 
V.  Edwards,  120,    123,   176,   231, 

235,  239,  276,  465,  583. 
V.  Efler,  544. 

V.  Elkins,  376,  432,  457,  459. 
V.  Ellick,  81,  82. 
V.  Elliott,  176,  193,  420,  427,  440, 

556. 
V.  Ellis,  46,  120,   123,   144,   472. 

473,  576,  583. 
V.  Emery,  39,  -55,  164. 
V.  Epps,  351. 

v.  Erb,  118,  119,  120,  122,576. 
V.  Evans,  80,  404,  405. 
V.  Everett,  388. 

t;.  Fclter,  227,  404,  526,  538,  561. 
V.  Felters,  520. 
V.  Feltes,  526. 
■  V.  Ferguson,  77,  81,  429,  442. 
V.  Ferris,  371. 
V.  Field,  169,  4-58. 
V.  Fields,  109,  275. 
r.  Fisher,  394.  429, 
V.  Fitzhue,  491. 


State  V.  Fitzhugh,  441,  456. 
V.  Fitzporter,  168. 
V.  Fitzsimmons,  149,  152. 
V.  Flannigan,  593. 
V.  Fley,  126,  128,312. 
V.  Florenza,  283,  285. 
V.  Floyd,  155,  457,  583. 
V.  Foley,  346. 
V.  Fong  Ah  Sing,  573. 
V.  Fooks,  283. 
V.  Ford,  382,  457,  460,  464. 
V.  Forney,  283,  284,  285. 
V.  Forsythe,  212,  341. 
V.  Foster,  103,  592. 
V.  Fowler,  556. 
V.  Fox,  290,  291. 
V.  France,  155. 
V.  Frank,  404,  405. 
V.  Fravier,  438. 
V.  Frazer,  583. 
V.  Frazier,  439. 
V.  Fredericks,  550,  554. 
r.  Freeman,    258,  274,  290,  292, 

442,  548. 
V.  Frink,  328. 
V.  Fuentes,  144. 
V.  Fulkerson,  31. 
V.  Gardiner,  .304,  544,  547. 
V.  Gardner,  103,  105. 
r.  Garie,  176. 

V.  Garrand,  103,  107,  114,  441. 
V.  Garrett,  10,  21-5,  216. 
I'.  Garvey,  235,  245,  246,  247,  548, 

555. 
V.  Gary,  274. 
V.  Gaskins,  149. 
V.  George,  302,  569. 
V.  German,  54(i. 
r.  Gessert,   45,  261,  301,  302. 
V.  Gillick,  80,  438,  472,  536,  583. 
V.  Gilman,  .30,  94,  508,  555. 
r.  Glass,  58,  168. 
V.  Glidden,  193. 
V.  Godfrey,  405. 
V.  Good),  75. 
V.  Goodenow,  30. 
V.  Goodrich,  432. 
r.  Gossett,  548,  551, 
V.  Gould,  290,  291,  413. 
r.  Graham,  457,  506,  507. 
V.  (Jrant,  310,  311,  461,  548,  586. 
V.  Grate,  .381,  483. 
V.  Graves,  345. 
t'.  Graviotte,  232. 
V.  Grayer,  70,  73,  501,  502. 


TABLE    OF   CASES. 


liii 


State  V.  Grear,  77,  239. 

t;.  Green,  103,  107,  111,  119,  126, 

4G1,  517. 
V.  Greer,  178,  207,  375. 
V.  Gross,  4oi. 
V.  Griffin,  142,  315,  344. 
V.  Guidry,  395. 

V.  Guild,  544,  546,  548,  549,  550. 
V.  Gut,  21,  60,  154,  219,  232,  245, 

246,  250,  552. 
V.  Guy,  428,  429,  461,-462,  551. 
V.  Hagan,  548,  549. 
V.  Halida,  278. 
V.  Hall,  429. 
V.  Halsted,  280. 

V.  Hamilton,  118,  119,121,341. 
.  V.  Hamlin,  286,  310. 
V,  Hammond,  125. 
V.  Haney,  298,  300,  301. 
V.  Hanley,  395. 
V.  Hannah,  441. 
V.  Hardie,  39,  55,  97,  164, 106. 
V.  Hardin,  573. 
V.  Hardy,  176. 
17.  Hargctt,  90. 

V.  Harlow,  231,  232,  239,  245. 
V.  Harman,  155,  204,  221,  222, 547. 
V.  Harmon,  177. 
V.  Harper,  441. 
f.  Harris,  13,  89, 103, 107, 176,177, 

188,  276,  283,  285,  307,  413, 

414,  420,  427,  436,  437,  457, 

471. 
V.  Harrison,  565,  570,  583. 
r.  Hart,  232. 
V.  Hartnett,  259. 
V.  Hartwell,  317. 
V,  Harvell,  257. 
V.  Harwood,  315. 
V.  Hawks,  255. 
V.  Hayes,  583. 

V.  Hayden,  457,  525,  526,  527. 
V.  Hays,  67,  80,  105,  336,  429. 
V.  Haywood,  227. 
V.  Hennessey,  559. 
V.  Hensley,  75. 
V.  Henson,  94,  294,  298. 
V.  Herdina,  239. 
V.  Hernandez,  394. 
V.  Heyward,  127,  128. 
V.  Hicks,  103,  176. 
V.  Hildreth,  461. 
V.  Hill,  13,  16,  75,  76,  81,  SG,  103, 

105,  107,  111,  118,  177,  202, 

316,  317,  322,  326. 


State  V.  Hinkle,   475,  476,  517,   523, 

524. 
V.  Hobbs,  257,  298,  300. 
V.  Hockett,  80,  142,  227,  456,  457, 

525,  592. 
V.  Hogue,  81,  82,  456,  458. 
r.  Holcomb,  472. 
V.  Holland,  557,  558. 
V.  HoUensclieit,  556,  557. 
V.  HoUis,  187. 
V.  Holme,  77,  103,  105,  155. 
I'.  Holong,  283. 
V.  Holt,  388. 
V.  Hooper,  255. 
V.  Hoover,  1,  5. 
V.  Huber,  591. 
V.  Hudson,  176,  201. 
V.  Huff,  298,  300. 
V.  Huggins,  298,  300. 
V.  Hughes,  259. 

V.  Hundley,  239,  245, 248, 538, 561. 
V.  Huntle^',  232,  544. 
V.  Hurlbut,  382. 

V.  Hurley,  231,  236,  239,  274,  538. 
V.  Huting,  227. 
V.  Huxley,  248. 
V.  Hyer,  557,  558,  559. 
V.  Hymer,  461,  462,  463. 
V.  Hopkirk,    103,    106,   111,   548, 

549,  554. 
V.  Hopper,  111,  255,  259. 
V.  Home,  175,  191,  241,  242. 
V.  Hornsby,  404. 
V.  Horskin,  208. 
V.  Horton,  315. 
V.  Houser,  528. 
V.  Houston,  273,  314. 
V.  Howard,  420,  472,  548,  558. 
V.  Howell,  85,  395,  573. 
V.  Hoyt,  80,  81,  103,  107, 110, 157, 

272,  294,  348,  349,  461,  462, 

463,  464,  465,  520,  538. 
V.  Ingold,  177,  203, 
V.  Ingram,  554. 
V.  Isaacs,  556. 
V.  Jackson,   126,   274,    342,    303. 

394,  429,  457,  459,  563. 
V.  Jacobs,  145,  171,  506,  583. 
r.  Janvier,  429,  457,  459. 
V.  Jarrot,  30. 
V.  Jarrott,  67,  128. 
I'.  Jefcoat,  380. 
V.  Jefferson,  544. 

V.  Jenkins,  288,  289,  294,  312,  314. 
V.  Jennings,  103,  105,  573. 


liv 


TABLE   OF   CASES. 


State  V.  Jewell,  397. 

V.  John,  155,  232,  246. 

V.  Johnson,  31,  01,  77,  81,  91,  118, 
139,  107,  176,  203,  232,  235, 
239,  240,  245,  250,  '251,  283, 
286,  347,  353,  363,  404,  440, 
441,  454,  463,  477,  495,  501, 
536,  556,  564,  565,  569,  576, 
583,  585. 

V.  Jefferson,  552. 

V.  Jones,  67,  98,  99,  103,  119  177, 
229,  286,  294,  340,  376,  377, 
384,  521,  522,  536,  537,  554, 
558,  560,  563,  570. 

V.  Kane,  298,  299,  351,  363. 

V.  Kaufman,  288. 

V.  Kearley,  103,  107,  110. 

V.  Keath,  239. 

V.  Keeler,  540. 

V.  Keene,  176,  427,  457. 

V.  Kellerman,  558. 

V.  Kelly,  391. 

V.  Keneston,  280. 

V.  Kennedy,  12,  13,  157,  172,  173, 
175,  196,  204. 

V.  Kilgore,  105,  290,  291,  441,  575. 

V.  Kitty,  548. 

V.  King,  13. 

V.  Kirby,  550,  555. 

V.  Klinger,  394,  527,  538,  561. 

r.  Knight,  70,  77,  139,  140,  336, 
372. 

V.  Knowles,  546. 

V.  Kotovsky,  118,  120,  123,  576. 

V.  Kring,  346,  359,  360, 

V.  Labuzan,  457,  459. 

V.  Lakey,  303. 

V.  Lamb,  546. 

V.  Lambert,  495. 

V.  Lamon,  301,  302. 

V.  Landgraf,  35. 

V.  Lane,  75,  76,  00. 

V.  Langfonl,  370. 

V.  Lautcnsehlager,  31,  290,  291. 

r.  Lawler,  519. 

V.  Lawlor,  519,  5.33. 

I'.  Lawrence,  538,  56L 

V.  Lay,  281. 

V.  Learned,  550. 

V.  Leabo,  583,  584. 

V.  Leak,  84. 

V.  LeBlanch,  47. 

V.  Lee,  342,  .346,  427. 

V.  Leei)cr,  118,  120,  122,  280,  281, 
440,  488. 


State  V.  Leobe,  399. 
V.  Leonard,  144. 
I'.  Lessing,  98,  100,  286,  593. 
V.  Levigne,  149,  150. 
V.Lewis,  118,  120,  122,  123,  368, 

370,  546,  573. 
V.  Lincoln,  304,  305,  306. 
V.  Linney,  176,  201,  348. 
V.  Lipsey,  105,  144. 
V.  List,  149,  152. 
V.  Litchfield,  558,  559. 
V.  Lockwood,  388. 
V.  Long,  274,  275. 
V.  Lopez,  103,  107. 
V.  Lowe,  283,  285. 
V.  Lowhorne,  548. 
V.  Ludwig,  55,  56,  57. 
V.  Lyons,  274,  388. 
V.  Madoil,  404. 
V.  Mahan,  103,  175,  194,  523,  528, 

583. 
V.  Mahly,  103. 
V.  Malin,  500. 
V.  Mahon,  107,  556,  557. 
V.  Mallon,  347. 
V.  Manluff,  278. 
V.  Mansfield,  388. 
r.  Marler,  538,  557,  561. 
V.  Marsh,  118. 
V.  Marshall,  555. 
V.  Martin,   75,  76,   178,  250,  469, 

538,  556,  561. 
V.  Massage,  155. 
V.  Mathes,  441,  450. 
V.  Matthews,  34,  86,  177,  -341,  .376, 

427,  457,  458, 555. 
V.  McCahill,  129. 
V.  McCanon,  441,  444. 
I'.  McCants,  70,  71,  130,  240,  243, 

247,  461,  462,  491. 
V.  McClear,  387,  401. 
V.  McCluer,  569,  571. 
V.  McCormick,  286,  583. 
V.  McCoy,  427,  538,  561. 
V.  McDaniel,    86,   290,   291,    298, 

29!). 
V.  McDonald,  212,  392. 
V.  McDonnell,    70,    81,    156,    157, 

479,  ,556,  581. 
V.  McEvoy,  442,  444. 
V.  McCaffin,  286. 
V.  McGinniss,  259. 
V.  McGonigal,  232,  239,  247,  248, 

2.50. 
V.  McGray,  37. 


TABLE   OF   CASES. 


Iv 


State  V.  McGreer,  188. 
V.  McKee,  404. 
V.  McKinney,  589. 
V.  McLaiie,  290,  273. 
V.  McLaughlin,  555. 
V.  McLendon,  363,  372. 
r,  McNal),  101,  310,  321. 
V.  McNally,  92,  103, 107, 112,429. 
V.  McNeill,  144. 
V.  Mcaker,  373. 
V.  Medlicott,  440,  444. 
V.  Medliii,  177. 
V.  Meinhart,  275. 
V.  Melton,  72,  103,  107,  111. 
V.  Merrill,  30,  81,  177,  484. 
I'.  Meshek,  341. 
V.  ]\Iewherter,  227. 
V.  Middleham,  175,  196,  204,  205, 

528,  529. 
V.  Mikle,  475. 
V.  Miller,  103,  508. 
V.  Millian,  279. 
V.  Mills,  320,  322,  441,  548. 
V.  Mitchell,  30,  77,  105,  479,  481, 

482. 
V.  Merrill,  144. 

V.  Moelchen,  436,  437,  483,  501. 
V.  Montgomery,  94. 
V.  Moore,  29,  57,  58,  70,  73,  168, 

169,  212,  213,  214. 
V.  Moran,  133,  134,  534,  535,  558, 

591. 
V.  Morea,  35,  37, 
V.  Morgan,  157,  289,  524. 
V.  Morphy,  118,  120,  122,  411. 
V.  Morris,  513. 
V.  Morrissey,  7,  290. 
V.  Morrison,  278. 
V.  Moser,  280. 
V.  Moses,  294. 
V.  Mowry,  216,  227,  231,  235,  238, 

239,  243. 
V.  Mullen,  66,   80,   83,    176,    194, 

•  195,  232,  239,  245. 
V.  Munch,  275. 
V.  Murph,  390. 
V.  Myers,  126. 
V.  Nash,  .332,  438,  440,  443,  469, 

472. 
V.  Neeley,  160,  175,  182,  201,  283, 

284,  285. 
V.  Nelson,  488,  548. 
V.  Nett,  458. 
V.  Neuner,  400. 
V.  Neville,  155. 


State  V.  Newcomb,  187. 
V.  Newhouse,  441,  449. 
I".  Newlin,  527. 
V.  Newton,  81. 
V.  Nixon,  227,  229. 
V.  Norris,  74,  139. 
V.  Neeley,  175,  182. 
V.  Nueslein,  103, 107,  111,  569,  571. 
V.  Nugent,  416,  461. 
V.  O'Brien,  163. 
V.  O'Connor,  176. 
V.  Odell,  558. 
V.  Oehlchlager,  357. 
V.  O'Hara,  118,  120,  122. 
V.  Oliver,  158,  216,  443,  496. 
V.  O'Neal,  155,  312. 
V.  O'Neil,  118. 

V.  O'Niel,  118,  119,  121,  276. 
V.  Orrell,  2,  34. 
V.  Ostrander,  548,  569,  597. 
V.  Ott,  376. 

r.  Outerbridge,  301,  302. 
V.  Outs,  382. 

V.  Owen,  91,  289,  294,  295,  683. 
V.  Page,  348. 
V.  Pagels,  227. 
V.  Parker,  290. 
V.  Partlow,  67,  87,  155,  156,  202, 

203,  205,  441,  443,  449,  461, 

548. 
V.  Patten,  578. 
V.  Patterson,   30,   206,   208,   367, 

442,  541,  546,  548,  549,  552. 
V.  Patza,  510,  512. 
V.  Paulej%  45,  261. 
V.  Paulk,  231,  240,  248. 
V.  Payton,  94,  103,  107,  112,  290, 

312,  313,  314. 
V.  Peace,  441. 
V.  Peacock,  208. 
V.  Peak,  176,  201. 
V.  Pearce,  456,  457. 
V.  Peniberton,  307. 
V.  Perigo,   80,  83,  175,   196,  198, 

202,  280,  331,  499,  500. 
V.  Perkins,  550. 
V.  Perry,  496. 
V.  Peterson,  274,  387. 
V.  Phelps,  283,  284,  285,  548,  549, 

554. 
V.  Phil,  367. 

V.  Phillips,  101,  134, 136,  470,  576. 
V.  Pike,  84,  101,  239,  466,  527. 
V.  Pitts,  232,  239. 
V.  Polite,  298,  299. 


Ivi 


TABLE   OF   CASES. 


State  V.  Poll,  441. 
V.  Porter,  569. 
V.  Potter,  175,  194,  303,  456,  547, 

557,  559,  591. 
V.  Pratlier,  289. 
V.  Pratt,  155,  538,  556,  561. 
V.  Price,  441. 
V.  Quarrel,  393. 
V.  Quick,  442. 

V.  Rainsbarger,  80,  503,  515,  517. 
V.  Ramsay,  433. 
V.  Ramsey,  149,  154,  294,  298. 
V.  Rash,  461,  466. 
V.  Ray,  359. 

V.  Raymond,  31,  94,  95,  101,  387. 
V.  Reckards,  379. 
V.  Reddick,  560. 
V.  Redemeier,  227,  5.38,  561. 
V.  Reed,  315,  470,  556. 
V.  Reidell,  227. 
V.  Reilly,  346,  347. 
V.  Revells,  548. 
V.  Rheams,  149,  176,  203. 
V.  Rhodes,  103,  105,  119,  142,  194, 

195. 
V.  Richards,  375. 
V.  Ricks,  583. 
j;.  Riddle,  348,  4-57,  4-59. 
V.  Rider,  176,  196,  429,  441,  457. 
V.  Riffe,  280. 
V.  Rigshy,  548,  549. 
V.  Rineliart,  289. 
V.  Rippon,  384. 
V.  Roane,  11,  13,  17,  97,  102,  164, 

177,  215. 
V.  Roberts,  155. 
t'.  Robert's  Case,  552. 
V.  Robertson,  427. 
V.  Robinson,    104,    107,   118,   119, 

120,  240,  249,  2.50,  408,  413. 
r.  Rockafellow,  316,  317,  321. 
r.  Rogers,  175,  182,  196. 
V.  Rollins,  403. 
V.  Rose,  175,  176. 
V.  Ross,  271,  420,  592,  -595. 
V.  Rover,  591. 
r.  l^issell,  363,  .557,  559. 
V.  Rust,  257. 
V.  Rutherford,  11,  12,  1.%  17,   18, 

177,  215,  328. 
V.  Ryan,  298,  300,  404,  429,  591. 
V.  Sales,  314. 
V.  Samuel,  155. 
V.  Sanders,  294,  381,  471,  507. 
V.  Satterwhite, 


State  V.  Saunders,  396. 
V.  Schingen,  246. 
V.  Schlagel,  558. 
V.  Schmidt,  440,  449,  450. 
V.  Schoenvvald,  67,  375,  376,  377, 

569,  571. 
V.  Scott,  85,  80,  191,  278, 283,  285, 

443,  546. 
V.  Seay,  47. 
V.  Sharp,  105. 
V.  Shay,  290. 
V.  Shelledy,  38,  100, 159. 
r,  Shelton,  175,  203,  286,  441,  447, 

528. 
V.  Shenton,  280. 
V.  Shepherd,  277,  298,  461. 
V.  Sliippey,  16,  17,  75,  76, 157, 176, 

315. 
V.  Shirley,  95. 
V.  Shoultz,  103,  521,  ^22. 
V.  Shuford,  496,  498. 
V.  Sides,  298,  300. 
V.  Simmons,  11,  583. 
V.  Simnis,  3-J9,  360,  561,  569. 
V.  Simon,  441. 
V.  Simpson,  371. 
V.  Sizemore,  70,  71,  149. 
V.  Slagle,  168,  282. 
V.  Sloan,  176,  290,  310,  311,  427. 
V.  Smalley,  278. 
i;.  Smitli,  30,  31,  34,  .35,  77,  91,94, 

97,   139,  141,  176,  202,  239, 

290,  293,  341,  342,  347,  .359, 

300,  376,  401,  458,  530,  536, 

538,  5(>1,  504,  .569,  595. 
r.  Sneed,  72,  103,  107,  111,  244, 

496,  579,  580. 
V.  Soplier,  103,  106,  109,  231,  372, 

396,  480,  548. 
V.  Spangler,  118,  142. 
I'.  Sparrow,  411. 
V.  Spaulding,  92,  93,  427. 
V.  Spell,  428. 

V.  Spencer,  441,  538,  561.  . 
V.  Spores,  382. 
V.  Squires,  548. 
V.  Stackhouse,  528. 
V.  Stair,  472,  474,  534. 
V.  Stalcup,  40. 
V.  Staley,  548,  554. 
V.  Stanley,  175,  304. 
V.  Stanton,  .30,  31. 
V.  Stark,    77,   139,  2-30,  232,  .347, 

520,  538,  583. 
V.  Starling,  538. 


TABLE    OF   CASES. 


VH 


State  r.  Starr,  103,  160,  176,  193. 
V.  St.  Clair,  583. 
V.  Stebbins,  557,  558,  559. 
V.  Steeley,  303. 
V.  Stephen,  509,  570,  575. 
V.  Sterrett,  175,  402,  469,483,484. 
V.  Stewart,  298,  429. 
V.  St.  Genie,  170,  193. 
V.  Sticklejs  227. 
V.  Stockton,  176. 
r.  Stoeckli,  118,  575. 
V.  Stokely,  100. 
V.  Suggs,  544. 
V.  Sullivan,  433. 
V.  Summons,  317,  322,  327. 
V.  Sundheinicr,  285,  298,  300. 
V.  Sutton,  98,  274. 
V.  Swayze,  77,  80. 
V.  Sweeney,  275. 
I'.  Swift,  176. 
V.  Swink,  556. 

V.  Ta-cha-na-tah,  77,  78,  91. 
V.  Tackett,  144,  149,  151. 
r.  Talbott,  532,  576. 
V.  Tatro,  231,  232,  2-36,  240,  551, 

552. 
r.  Taylor,  257,  289,  291,  298,  300, 

301,  302,  508,  535. 
V.  Terrell,  531,  532. 
V.  Testerman,  298,  300,  495. 
V.  Thibeau,  479,  483. 
V.  Thomas,  80,  239,  283,  285,  469, 

536. 
V.  Thompson,  12,  13,  14, 172,  173, 

175,  184,  196,  204,  205,  2-32, 

235,  239,  248,  250,  286,  366, 

367. 
V.  Thornton,  .558,  559. 
V.  Thraslier,  256. 
V.  Thurman,  283. 
V.  Tilghnian,  441. 
t'.  Till,  118,  119,  121,2.39. 
V.  Tilly,  91,  457,  476,  477. 
V.  Tissing,  280. 
V.  Toby,  363. 
V.  Town,  77. 
V.  Townsend,  118,  120,  122,   289, 

291,  525. 
V.  Trivas,  77,  250. 
V.  Trout,  561,  569. 
V.  Tucker,  404. 
V.  TuUer,  .393. 

V.  Turner,  31,  67,  77,  99,  139,  232. 
V.  Turpin,  427,  429,  432. 
V.  Twiggs,  509. 


State  V.  Unrlerwood,  .30,  80,  156,  176, 

217,218,343,  347. 
V.  Upham,  346. 
V.  Upton,  411,  591. 
V.  Vance,  97,  157,  102,  164,  165. 
V.  Vandergraff,  555. 
V.  Vansant,  441. 
V.  Vatter,  396. 
V.  Verrill,  276. 

V.  Vincent,  430,  437,  523,  535,  5.36. 
V.  Vines,  162,  164,  165,  187. 
V.  Vogel,  393. 

V.  Wagner,  84,  103,  105,  107,  260. 
t'.  Walker,  67,  1.3-3,  134,  341,  418, 

472,  473,  479,  515,  5.32,  544, 

549,  550,  559,  569,  571,  583, 

585. 
V.  Waller,  294,  .301,  302. 
V.  Waltham,  341. 
V.  Wamire,  379,  383. 
V.  Ward,  80,  298,  300,  301,  328, 

39.3,  394,  576. 
V.  Waters,  363,  394. 
V.  Watkins,  286,  517. 
V.  Watson,  149,  341,  457,  459, 460, 

557,  558,  559. 
V.  Weasel,  482. 
V.  Weese,  591. 
V.  Welch,  30,  2.32,  239,  240,  242, 

545,  555. 
V.  Wells,   16,  84,    103,    107,   109, 

176,  203. 
V.  Wentworth,  461,  548. 
t;.  West,  81,   82,   411,    515,    516, 

521,  531,  536,  542,  557,  561. 
V.  Westfall,  175. 
V.  Whitaker,  286,  287. 
V.  White,  232,  239,  245. 
I'.  Whitetield,  548. 
V.  Whitfield,  549. 
V.  Wicks,  317,  .325. 
V.  Wieners,  103, 104, 107,  118,  576. 
V.   Williams,   104,  274,   283,  285, 

289,  290,  298,  347,  .348,  420, 

425,  429,  430,  431,  432,  540, 

558. 
V.  Willis,  81,  536. 
V.  Wilson,  126,  382,  440.  576. 
V.  Wimberly,  283,  285,  289. 
V.  Winningham,  362. 
V.  Wintzingerode,  516,  550. 
V.  Wisdom,  84. 
V.  Wise,  37.3. 
V.  Witt,  304,  .305. 
V.  Wolcott,  658. 


Iviii 


TABLE   OF   CASES. 


State  V.  Wood,  36,  377,  442. 
t;.  Woodward,  157. 
V.  Wordcn,  388. 
V,  Worthington,  556. 
r.  Wyckoff,  47,  48. 
V.  Yancry,  373,  593. 
V.  Yarborough,  70,  72. 
V.  Yarbroiigh,  149,  151. 
V.  Yordi,  294. 
V.  York,  548,  549,  550. 
V.  Young,  508,  555. 
V.  Zeibart,  312. 
V.  Zellers,  30,  65,  139,  142,  161, 

275,  508. 
V,  Zule,  274,  275. 
Staten  v.  State,  13,  176,  207,  219,  222. 
Steele  v.  Commonwealth,  376. 
Steernian  v.  State,  201. 
Stephen  v.  State,  547,  552. 
Stephens  v.  People,  377,  384,  404,  410, 
483,  484,  496,  517,  518,  523, 
524,  546,  570,  583. 
V.  State,  129,  354,  356,  531. 
Stevens  v.  State,  178,  227,  397,  438, 

560. 
Stewart  v.  State,  13,  87,  149,  172,  173, 
177,  196,  201,  271,  353,  366, 
372,  401,  442,  461,  501,  513, 
583. 
Stibbins  v.  Stibbins,  546. 
Stiff,  Ex  parte,  322. 
Stiles  V.  State,  67,  155,  174,  201,  202, 

203. 
Stillwell  V.  Kellogg,  387. 
St.  Louis  &  S.  E.  R.  Co.  v.  Mathias, 
341,  343,347. 
V.  Myrtle,  347. 
St.  Louis  V.  State,  517. 
Stocking  V.  State,  540,  557. 
Stockton  V.  State,  177. 
Stoffer  V.  State,  173,  177,  202. 
Stokes  V.  People,  30,  77,  99,  206,  429, 
432. 
V.  State,  81,  139,  141,  142,   150, 
155,  505,  506,  507. 
Stone  V.  People,  294. 

V.  State,  411. 
Stonehani  v.  Commonwealth,  189. 
Stoneman  r.  Commonwealth,  13,  178, 

208,  210. 
Storey  ;;.  State,  212,  591. 
Story  V.  State,  175,  201,  213,  534, 
Stout  V.  People,  517. 
Strait  V.  State,  54(i,  548. 
Street  v.  State,  321,  326. 


Strickland  v.  State,  301. 
Stringfellow  ;■.  State,  546. 
Strode  v.  Stafford  Justices,  356. 
Stuart  V.  People,  269. 
V.  State,  240,  248. 
Stubbs  v.  State,  382,  383. 
Studstill  V.  State,  31,  97, 139, 143,  301, 

372,  373,  374. 
Sturges  V.  Maitland,  97. 
Summers  v.  State,  29. 


T. 


Tabler  v.  State,  34. 

Tabor  t'.  Cook,  387. 

Tate  V.  State,  150. 

Tayloe,  Ex  parte,  139,  141,  317,  320. 

Taylor  v.  Commonwealth,  275,  358. 

V.  State,  173,  190,  279,  363,  540, 
579,  595. 
Teachout  v.  People,  555. 
Teal  V.  State,  17,  174,  189,  576. 
Teller  v.  Wetherell,  355. 
Temp  V.  State,  306. 
Tenorio  v.  Territory,  279,  290,  291. 
Terrell  v.  Commonwealth,  175,  202. 
Territory  t-.  Adolfron,  563,  564,  569. 

V.  Ah  Wah,  388. 

V.  Baker,  176,  187. 

V.  Bannigan,  71,  569,  570,  572. 

V.  Benoit,  317,  320,  322. 

V.  Big  Knot  on  Head,  545. 

r.  Calton,  144. 

V.  Clayton,  404,  406,  476,  478,  569. 

V.  ConncU,  231. 

r.  Cotton,  235. 

V.  Edmondson,  569. 

V.  Egan,  67,  523.  533. 

V.  Evans,  283,  286. 

V.  Farrell,  546. 

V.  Franklin,  236. 

V.  Gay,  375,  379, 

V.  Halliday,  283,  387,  428. 

V.  Ilittick,  387. 

V.  McAndrews,  536. 

V.  Manton,  283,  284,  285,  570,  571. 

r.  Mullii!,  317. 

r.  O'DonnclI,  287. 

I'.  Koinine,  84. 

V.  Tunnell,  569. 

V.  Yarberry,  375,  376,  591, 

V.  Young,  290,  292. 
Terry  v.  McClin,  546. 
Tesncy  v.  State,  81,  173,  201. 


TABLE   OF   CASES. 


lix 


Tharpe  v.  State,  133,  134, 

Theal  v.  Reg.,  278,  434. 

Thomas  v.  People,  81,  456,  457,459, 

460,  483,  485. 
f.  State,  90,   144,  274,  298,  300, 

322,  32.3,  412,  417,  428,  475, 

477,  528,  534. 
Thomason  v.  Territory,  429. 
Thompson's  Case,  5.52. 

V.  Commonwealth,  133,  312,  411, 

549. 
V.  State,  126,  149,  1-50,  174,  281, 

317,  320,  347,  373,  440,  472, 

473,  591. 
V.  Territory,  431, 
Thuston  V.  State,  178,  201. 
Tickle  V.  State,  149,  153. 
Tidwell  V.  State,  35,   231,  235,   2.39, 

250,  501,  502. 
Tiffany  v.  Commonwealth,  458,  570. 
Tillery  v.  State,  177,  193,  194. 
Tillman  v.  Ailes,  388. 
Timmerman  v.  Territory,  277,  540, 565, 

568,  570. 
Tims  V.  State,  387. 
Tinckler's  Case,  169,  444. 
Tindall  v.  State,  3.52. 
Tiner  v.  State,  158,  217. 
Tipton  V.  State,  .556. 
Titus  V.  State,  288,  413,  415. 
Tompkins  v.  State,  126. 
Toney,  Ex  parte,  355. 
Tooney  v.  State,  84, 104, 107,  117,  128, 

475. 
Tow  V.  State,  491,  532,  533. 
Tracy  ;.•.  People,  440. 
Trammell  v.  State,  591. 
Traverse  v.  State,  517. 
Traviss  v.  Commonwealth,  395. 
Trice  v.  Hannibal  &  St.  J.  R.  Co.,  -348. 
Trigally  v.  Mayor,  etc.,  of  Memphis, 

'  387. 
Trim  v.  Commonwealth,  1.33,  1-34,407. 
Trimble  v.  Commonwealth,  142. 
Trowbridge  v.  State,  373. 
True  V.  True,  546. 
Tucker   v.    Henniker,   342,   343,  346, 

347. 
Tullis  V.  Kidd,  526. 
Tully  V.  People,  591, 
Turner  v.  Commonwealth,  274,  560. 

V.  State,  77,  155,  510. 
Turner's  Case,  295. 
Turns  v.  Commonwealth,  290, 
Turpin  v.  State,  429, 


Tattle  V.  State,  380. 

Tweedy  v.  State,  175,  184,  204,  536 

569. 
Twitchell     t-.     Conmionwealth,    366, 

386. 
Tyler  v.  People,  44,  47,  260,  261,  262. 
Tyner  v.  State,  546. 
Tyra  v.  Commonwealth,  232,  250,388. 


U, 


Udderzook    v.    Commonwealth,    528, 

529,  533. 
Uhl  V.  People,  177. 
Ullery  v.  Commonwealth,  317,  318. 
Ulmer  v.  State,  558. 
Underwood  v.  People,  388. 
Union  Ins.  Co.  v.  Cheever,  342. 
United   States  v.  Armstrong,  47,  77, 
143,  149,  579. 

i\  Bascadore,  555, 

V.  Bayand,  357. 

V.  Beaeham,  303. 

V.  Beebe,  275,  475. 

V.  Bevans,  202. 

V.  Bickford,  362,  363. 

V.  Bicksler,  557, 

V.  Black,  400. 

v.  Bladen,  143. 

V.  Bloomgart,  266. 

V.  Burr,  316. 

V.  Carr,  9,  144,  226,  271. 

V.  Charles,  549. 

V.  Clark,  225,  226,  240,  248,  249, 
250,  263. 

V.  Clarke,  233. 

V.  Claypool,  237,  238,  248, 

V.  Cook,  2-56.    • 

V.  Coppersmith,  401. 

V.  Cornell,  70,  233,  240,  246,  248, 
363. 

V.  Cottingham,  401. 

V.  Craig,  400. 

V.  Crow  Dog,  80. 

V.  Curtis,  3(^3,  364. 

I'.  Darnaud,  278. 

V.  Davidson,  372. 

V.  Davis,  47. 

V.  Davis,  378. 

V.  Dawson,  274. 

V.  Demarchi,  302,  303. 

V.  Devlin,  401. 

r.  Donau,  126. 

V.  Douglas,  312. 


Ix 


TABLE   OF    CASES. 


United  States  v.  Drew,  231,  23G,  240, 
248,  249,  250. 
V.  Duffy,  555. 
r.  Forbes,    233,   236,    240,    249, 

250. 
V.  Fox,  300. 

V.  Freeman,  07,  98,  169. 
V.  Gibert,  372,  411. 
V.  Goldberg,  120. 
V.  Greathouse,  20. 
V.  Grush,  262. 
V.  Guiteau,  520,  526. 
i;.  Hamilton,  316. 
V.  Hand,  265. 
V.  Harries,  559. 
V.  Hartwell,  358. 
V.  Hewson,  34. 

V.  Holmes,  18,  172,  223,  262,  290 
r.  Howard,  271. 
V.  Inibert,  143. 
V.  Jailer,  215. 
V.  Jailer  of  Fayette  County,  216. 

V.  Johns,  400. 

1-.  Jones,  29,  40,  322. 

V.  Keefe,  274. 

V.  Keller,  164. 

V.  Kelly,  372. 

V.  Kie,  323. 

I'.  King,  m,  175,  231,  235,  466. 

V.  Knowles,  169. 

I".  Knowlton,  174. 

V.  Lambert,  400. 

17.  Lancaster,  280. 

V.  Lawrence,  538. 

V.  Learned,  30. 

V.  Lee,  228. 

V.  Leigliton,  174. 

V.  Magill,  45,  48. 

V.  Marchant,  372. 

V.  McGill,  47,  48,  143,  262. 

V.  McGlue,  81,  227,  233,  236,  240, 
248,  249,  538. 

V.  Mingo,  156,  178,  536. 

V.  Neverson,  363,  364,  462,  476, 
477,  5.57. 

V.  Nott,  547,  549,  550. 

V.  Nunnemaclicr,  126. 

V.  Nye,  278. 

r.  Outerbridgc,    12,    81,   98,    139, 
172,  173,  178,  187,  190,  193. 

V.  Pirates,  262. 

V.  Plumer,  356. 

V.  Prior,  556. 

r.  Pumphreys,  549. 

V.  Ramsay,  134. 


United  States  v.  Reed,  401. 
t'.  Rice,  10,  215,  427. 
V.  Ross,  11,67,95,  96,  128. 
V.  Rondenbush,  236,  245,  247. 
V.  Santos,  379. 
V.  Schumann,  267. 
V.  Scott,  93. 
V.  Shackleford,  401. 
V.  Sharp,  372. 
I'.  Southmayd,  266. 
V.  Spaulding,  275. 
V.  Stewart,  316,  318. 
V.  Tallman,  401. 
V.  Taylor,  164,  443. 
V.  Travers,  31,  139,  215. 
V.  Uphani,  275. 
V.  Veitch,  442. 
V.  Vigol,  18. 
V.  Warner,  97,  164,  167. 
I'.  Wliite,  267. 
r.  Williams,  274, 275, 363, 540, 541, 

546,  555. 
V.  Wilson,  274,  372,  556. 
V.  Wiltberger,  13, 16,  139, 143, 173, 

178,  184,  190,  204,  262. 
V.  Wood,  .363. 
V.  Woods,  442. 
V.  Worms,  266,  267. 
Upstone    V.    People,    234,    239,   250, 
527. 

V. 

Vaidcn  v.  Commonwealth,  178,  201. 
Van  V.  State,  119,  120,  124. 
Vanauken's  Case,  527. 
Van  Buren  v.  State,  549. 
Van  Buskirk  v.  Daugherty,  411. 
Vandermark  r.  People,  30. 
Vanvickle  v.  State,  275. 
Van  Zandt  v.  Mutual  Ben.  L.  Ins.  Co., 
526. 

V.  Mutual  Life  Ins.  Co.,  50. 
Varnell  v.  State,  580. 
Vass  I'.  Commonwealth,  442. 
Vaughan,  Ex  parte,  320,  .324,  326. 

V.  Commonwealth,  441,  549,  550, 
551. 
Vaughn  v.  Hann,  480. 

V.  Scadc,  388. 
Vaux's  Case,  57. 
Veatch  v.  State,  290,  592. 
Vise  r.  Hamilton  County,  339. 
Volkavitch  c.  Commonwealth,  290. 
VoU,  /i  J  parte,  328. 


TABLE    OF   CASES. 


Ixi 


W. 

Waddell  v.  State,  173. 
Wade  V.  State,  304,  363,  381,  583. 
Wadlington  v.  State,  14G. 
Wagner  v.  People,  274,  560. 
Walker,  Ex  parte,  330. 

V.  Sauviiiet,  366. 

V.  State,  30,  94,  301,  342,  433,  435, 

440,  484,  405,  505,  506,  510, 

520,  539,  540,  541,  551,  573, 

594,  595,  596. 

Wall  V.  State,  143,  144,  175,  177,  279, 

368,  373. 
Wallace  v.  State,  6,  7,  93,  358. 
Waller  v.  State,  379. 
Walrath  v.  State,  314. 
Walsh  V.  People,  533. 
Walston  V.  Commonwealth,  441,  443. 

V.  State,  594. 
Walters  v.  Commonwealth,  311. 

V.  People,  32. 
Walton,  Ex  parte,  3.30. 

V.  State,  440,  454,  592. 
Ward  V.  State,  290,  292,  440,  547,  548, 

550,  551,  596. 
Warehara  v.  State,  31,  94,  403. 
Warner  v.  State,  104,  2.30,  290. 
Warnock  v.  State,  328. 
Warren  v.  Commonwealth,  105,  483, 
489,  570,  571. 

v.  State,  67,  438,  440,  442,  579. 
Warrick,  Ex  parte,  149,  150. 
Washmgton  v.  State,  .39,  55,  80,  102, 

104,  108,  119,  469,  575,  576. 
Wasson  v.  State,  178. 
Watson's  Case,  249,  316,  .321. 

I'.  Commonwealth,  557,  559. 

V.  State,  46,  144,    173,  204,  205, 
311,  440. 
Watt  V.  People,  564,  565,  569. 
Watts  V.  State,  40. 
Waybright  v.  State,  173,  207. 
Wayne  County  v.  Waller,  339. 
Weaver  v.  State,  172,  191,  348,  350. 
Webb's  Case,  27. 

V.  State,  318,  327,  562,  570. 
Webber  ;;.  Commonwealth,  522. 
Webster  v.  Commonwealth,  507. 
Weed  V.  People,  30. 
Weeks  v.  State,  563,  569. 
Weighorst  v.  State,  98,  100,  593. 
Welbourn's  Case,  444. 
Welch  V.  State,  298. 
Welchell  v.  State,  294. 


Wellar  v.  People,  07,  101,  501. 

Welsh  V.  State,  126. 

Wenz  V.  State,  243,  246. 

Wesley  v.  State,  176,  188,  683. 

West  V.  State,  175,  178,  207,  275,  289, 
294,  404,  429,  458,  564,  569. 

Westbrook  v.  People,  440,  461,  563. 

Westmoreland  v.  State,  232,  411. 

Weston  r.  Commonwealth,  129,  212, 
213. 

Weyman  v.  People,  30. 

Weyrich  v.  People,  437. 

Whalen  i-.  Reg.,  400. 

Whallon  v.  Bancroft,  387. 

Wharton  c.  State,  531,  535. 

Wheeler  v.  State,  379,  509. 

Whitaker  v.  State,  440. 

White,  Ex  parte,  317,  325,  326. 
V.  Bailey,  526. 
V.  Commonwealth,  289. 
V.  People,  136,  137,  348. 
V.  State,  87,   142,   165,  178,  202, 

258,  286,  548,  557,  558. 
r.  Territory,  212,  213,  311,  429, 
462. 

Whitney  v.  State,  232. 

Wicks  V.  Commonwealth,  287. 

Wiggins  V.  People,  429. 
V.  State,  286. 

Wightman  v.  Providence,  347. 

Wiley  V.  State,  404. 

Wilkerson  v.  State,  294. 

Wilkinson  r.  Pearson,  527. 

Willett  V.  Commonwealth,  556. 

Willey  V.  State,  58,  281,  290,  372. 

Williams  v.  Commonwealth,  555,  568, 
570,  583. 
V.  People,  427,  -546. 
V.  State,  11, 17,  35,  36,  .38,  82,  102, 
107,  129,  142,  147,  148,  149, 
153,  164,  177,  178,  189,  190, 
204,  215,  227,  231,  235,  283, 
285,  287,  .348,  349,  353,  388, 
405,  425,  457,  458,  466,  499, 
500,  523,  556,  559,  570,  581, 
582,  595,  596. 

Williamson  v.  State,  166,  226. 

Willis  V.  Commonwealth,  240,  250. 
V.  People,  232. 

Wills  V.  State,  94. 

Wilson  V.  Abrahams,  410,  411. 

V.  People,  .32,  145,  409,  413,  438. 
V.  State,  103,  117,  119,  379,  383, 
388,  404,  406,  429,  550. 

Wings  V.  State,  348. 


Ixii 


TABLE   OF   CASES. 


Winn  v.  State,  274. 

Winnesheik    Ins.    Co.    v.    Schueller, 

399. 
Winslow  V.  State,  545. 
Winter  v.  Sass,  346. 
Wise  V.  State,  232,  244,  294,  528. 
Witham  r.  Diitton,  320,  321. 
Witliers  v.  Buckley,  '<i6*5. 
Witt  V.  State,  119,  283,  285,  289,  291, 

376,  383. 
Wolf,  Ex  parte,  325. 

V.  Commonwealth,  555. 

V.  State,  10,  215. 
Wolff,  Ex  parte,  317,  320. 
Wolffe  V.  Minnis,  342. 
Wood  V.  Colwell,  355. 

V.  State,  427. 
Woodcock's  Case,  444. 
Woods  V.  State,  405. 
Woodsides  v.  State,  30,  80,  105,  274, 

298,  300,  302,  441. 
Woodward  v.  State,  30. 
Wooldridge  v.  State,  594. 
Woolfolk  V.  Woolfolk,  546. 
Word  V.  Commonwealth,  348,  349. 
Work  V.  State,  388. 
Wormeley  v.  State,  206. 
Wortham  v.  State,  174,  193. 
Wray,  Ex  parte,  68. 


Wright   V.  Commonwealth,  104,  105, 

175,217,218,418. 
V.  People,  537,  560. 
Wright  V.    State,  216,  359,  300,  363, 

442,  495,  496. 
Wroe  V.  State,  533. 
VVynehamer  v.  People,  388,  387. 
Wynn  v.  State,  133. 
Wynne  v.  Governor,  355. 


Yaner  v.  People,  317. 
Yarbrough  v.  State,  325. 
Yates  V.  People,  413,  414. 

V.  State,  545,  547,  564,  570. 
Yelm  Jim  v.  Territory,  479. 
Yoe  r.  People,  342,  346. 
York  V.  Commonwealth,  170. 
Young  V.  Commonwealth,  12,  17, 172, 
176,  207,  346,  441,  548,  550, 
552. 

V.  State,  69, 142,  177,  547,  563,  557. 
Younger  v.  State,  376,  384,  401. 
Yundt  V.  People,  58,  168. 


Z. 


i  Zollicoffer  v.  State,  558. 


HOMICIDE. 


CHAPTER   I. 


WHAT   CONSTITUTES   HO:^^CrDE. 

Sec.  1.  Definition. 

Sec.  2.  Causing  death  indirectly. 

Sec.  3.  Homicide  by  substituted  a^ent. 

Sec.  4.  Substituting  poison  for  medicine. 

Sec.  5.  Infanticide. 

Sec.  6.  Same  —  Stating  sex  of  child. 

Section  1.  Definition.  —  Homicide  is  the  general  term 
for  all  acts  of  taking  life  committed  by  a  person  upon  himself 
or  another,!  whether  justifiable,  excusable,  or  felonious,^  and 
embraces  every  mode  by  which  the  life  of  one  man  is  taken 
by  the  act  of  himself  or  another.^  The  killing  may  be  an  act 
either  direct  or  indirect  which  results  in  death  "^  within  a  year 


1  4  Bl.  Comm.  177 ;  Harris'  Cr.  L. 
155;  Stephen's  Dig.  Cr.  L.  154; 
Washb.  Man.  Cr.  L.  73. 

2  4  Bl.  Comm.  178 ;  2  Bish.  Cr.  L. 
(7th  ed.)  §§  732-743;  1  Whart.  Cr. 
L.  (9th  ed.)  §.309  et  seq.  Hawkins 
defines  murder  as  "  the  wilful  killing 
of  any  subject  whatsoever  through 
malice  forethought."  1  Hawk.  P.  C. 
(Curw.  ed.)  92,  §  3.  Lord  Coke  says 
that  "murder  is  when  a  man  of  sound 
memory  and  of  the  age  of  discretion 
unlawfully  killeth,  within  any  county 
of  the  realm,  any  reasonable  creature, 
in  rerum  natura,  imder  the  king's  peace, 
with  malice  aforethought,  either  ex- 
pressed by  tlie  party  or  implied  by 
law,  so  as  the  party  wounded  or  hurt, 
&c.,  die  of  the  wound  or  hurt,  &c., 
within  a  year  and   a   day   after   the 


same."  3  Co.  Inst.  47.  Lord  Mans- 
field says  that  "  murder  is  where  a 
man  of  sound  sense  unlawfully  kill- 
eth another  of  malice  aforethought, 
either  expressed  or  implied."  He 
adds,  "  If  the  malice  be  express,  the 
facts  remain  with  the  jury.  If  the 
malice  is  to  arise  from  implication,  it 
is  a  matter  of  law,  the  entire  consid- 
eration of  which  resides  witli  the 
court ;  and,  in  the  present  case,  the 
finding  that  there  was  no  intent  to  kill 
does  not  in  any  degree  vary  the  ques- 
tion." Rex  1-.  Hazel,  1  Leach  (4th 
ed.)  368,  383  (1785). 

3  Commonwealth  v.  Webster,  59 
Mass.  (5  Cush.)  303  (1850). 

4  Commonwealth  v.  York,  50  Mass. 
(9  Mete.)  93  (1845)  ;  State  v.  Hoover, 
4  Dev.  &  B.  (N.  C.)  L.  305  (1839). 


2  'HOMICIDE.  [chap.  I. 

and  a  day  from  the  time  of  giving  the  mortal  wound.^  If 
the  act  is  committed  with  malice,  express  or  implied,  it  is 
murder  ;  if  without  malice,  it  is  manslaughter.  In  any  event 
the  injury  must  continue  to  affect  the  body  of  the  victim 
until  death ;  for  if  death  ensues  from  any  other  cause,  neither 
murder  nor  manslaughter  has  been  committed.  It  has  been 
said  that  a  person  who  unlawfully  sets  the  means  of  death  in 
motion,  whether  through  an  irresponsible  agent,"^  or  in  the 
body  of  the  victim,  is  the  guilt}^  cause  of  the  death  at  the 
time  and  place  at  Avhicli  his  unlawful  act  produces  its  fatal 
result.^ 

Killing^  has  been  otherwise  defined  as  causino-  the  death  of 
a  person  by  an  act  or  omission  but  for  which  the  person 
killed  would  not  have  died  when  he  did,  and  which  is  imme- 
diately and  directfy  connected  with  his  death.*  The  question 
whether  a  given  act  or  omission  is  directly  or  impliedly 
connected  with  the  death  of  any  person  is  a  question  of 
degree  dependent  upon  the  circumstances  of  each  particular 
case.'"* 

But  it  was  held  in  Ex  parte  Brydges  ^  that  an  indictment 
for  manslauffliter  Avill  not  lie  ao-ainst  the  manag-ino-  director 
of  a  railway  company  by  reason  of  the  omission  to  do  some- 
thing which  the  company  by  its  charter  was  not  bound  to  do, 
although  he  had  personally  promised  to  do  it. 

Sec.  2.  Causing  death  indirectly.  —  Anyone  who  causes 
the  death  of  another,  either  directly  or  indirectly,  will  be 
guilty  of  nuirder  or  manslaughter  according  to  the  circum- 
stances of  the  case.  Thus  Avhere  two  brothers  quarrelled, 
and  the  father  interfered  on  behalf  of  one  of  the  brothers, 
and  the  other  brotlicr,  having  Ik'cii  sto})ped  from  figliting, 
advanced  in  a  threatening  attitude   to  within  two  or  three 

1  People    7-.    Kollcy,     0     Cal.    210  ^  Commonwealth   v.  Macloon,    101 

(185(5);    Pfople    r.    Aro,   fi    Cal.  207  Mass.  1  (1869). 

(185r>)  ;    State    v.    Mayficld,   GG    Mo.  <  Stephen's  Dig.  Cr.  L.  155. 

125  (1877)  ;    State  v.  Orrell,  1    Dev.  ^  See  Keg.  r.  Bennett,  Bell  C.  C.  1 

(N.  C.)   L.   180   (1826)  ;    Edmondsnn  (1858)  ;  Rex  v.  Carr,  8  Car.  &  P.  108 

V.  State,  41  Tex.  406  (1874).     See  :!  (18;-I7);      s.c.   34    Eng.     C.  L.   668; 

Co.   Inst.    53;    1  Hale   P.  C.   424;    1  Keg.  r.  Pocock,  17   Q.  B.  34  (1851); 

Arch.  Cr.  P.  751.  s.c.  70     Eng.    C.  L.    34;      Stephen's 

'^  See  post,  §  40.  Dig.  Cr.  L.  156. 

«  18  L.  C.  Jur.  141  (1874). 


SEC.  2.]  WHAT   CONSTITUTES   HOMICIDE.  3 

feet  of  his  father,  and  with  violent  words  and  menaces,  and 
a  knife  in  his  hand,  declared  that  he  would  have  done  with 
the  deceased,  but  was  prevented  by  by-standers  from  striking 
the  deceased,  who  was  removed  in  a  state  of  great  agitation 
and  weakness,  and  within  twenty  minutes  after  died  of  syn- 
cope, the  court  held  that  the  death  having  resulted  from 
fear  caused  by  menaces  of  personal  violence  and  assault, 
though  without  actual  battery,  it  was  sufficient  in  law  to 
support  an  indictment  for  manslaughter.^  In  the  recent  case 
of  Reg.  V.  Dorlie  ^  the  evidence  established  that  one  T.,  an 
habitual  drunkard,  went  to  an  hotel  in  Quebec,  where  he  met 
the  prisoner  and  some  of  his  companions.  T.  put  himself  in 
the  way  to  be  offered  drink,  which  the  prisoner  ordered  for 
him  and  paid  for.  The  prisoner  then  gave  him  three  glasses 
of  liquor,  three-quarters  whiskey  reduced  and  one-quarter 
wine,  which  the  deceased  drank  in  rapid  succession.  Insist- 
ing on  the  deceased's  capacity  to  drink,  the  prisoner  offered 
to  make  bets  that  deceased  could  drink  more,  and  even  offered 
him  a  share  of  one  of  the  bets.  In  this  way  deceased  was 
induced  to  drink  two  very  large  tumblerfuls  of  a  mixture 
of  beer,  whiskey,  and  wine.  Shortly  after  the  deceased  was 
overcome  by  the  drink,  became  unconscious,  and  was  carried 
home  in  a  cab,  and  died  next  morning  without  ever  having 
recovered  speech  or  consciousness.  In  charging  the  jurj',  the 
court  said  that  drinking  with  another,  or  even  giving  another 
drink,  was  in  itself  innocent,  and  if  the  person  to  whom  the 
drink  was  given  died  of  the  eft'ects  of  it,  the  party  giving  it 
was  not  responsible.  But  if  the  jury  were  satisfied  that  the 
drink  was  given  not  out  of  good-fellowship,  but  with  the 
intention  of  making  the  deceased  ill  or  drunk,  it  was  an 
illegal  act ;  and  if  the  man  died  from  the  effects  of  the  drink 
so  given,  it  would  be  manslaughter  in  the  part}'  giving  it. 

To  the  same  effect  is  the  case  of  Reg.  v.  Hilliday,^  in  which 
it  appeared  that  in  order  to  escape  from  the  violence  of  her 
husband,  who  had  used  threats  to  her  amounting  to  threats 
against  her  life,  the  wife  in  attempting  to  get  out  of  the 
window  fell  to  the  ground  and  broke  her  leg,  and  the  hus- 
band was  convicted  of  having  inflicted  grievous  bodilj-  harm 

1  Reg.  f.  Dugal,  4  Queb.  L.  R.  330  2  9  Q„el).  L.  R.  852  (1883). 

(1878).  3  57  L.  T.  Rep.  N.  S.  701. 


4  HOMICIDE.  [chap.  I. 

on  hi.3  wife.  Chief  Justice  Coleridge,  who  presided  at  the 
hearing  said :  "  I  am  of  opinion  that  the  conviction  in  this  case 
is  correct,  and  that  the  sentence  shouki  be  affirmed.  The 
principle  seems  to  me  to  be  laid  down  quite  fully  in  Reg.  v. 
Martin.i  There  this  court  held  that  a  man  who  had  either 
taken  advantage  of  or  had  created  a  panic  in  a  theatre,  and 
had  obstructed  a  passage,  and  rendered  it  difficult  to  get  out 
of  the  theatre,  in  consequence  of  which  a  number  of  people 
were  crushed,  was  answerable  for  the  consequences  of  what 
he  had  done.  Here  the  woman  came  by  her  mischief  by 
getting  out  of  the  window,  —  I  use  a  vague  word  on  purpose, 
—  and  in  her  fall  broke  her  leg.  Now  that  might  have  been 
caused  by  an  act  which  was  done  accidentally  or  deliberately, 
in  which  case  the  prisoner  would  not  have  been  guilty.  It 
appears  from  the  case,  however,  that  the  prisoner  had  threat- 
ened his  wife  more  than  once,  and  that  on  this  occasion  he 
came  home  di'unk,  and  used  words  which  amounted  to  a 
threat  against  her  life,  saying,  '  I'll  make  you  so  that  you 
can't  go  to  bed ' ;  that  she,  rushing  to  the  window,  got  half 
out  of  the  window,  when  she  was  restrained  by  her  daughter. 
The  prisoner  threatened  the  daughter,  who  let  go,  and  her 
mother  fell.  It  is  suggested  to  me  by  my  learned  brother, 
that  supposing  the  prisoner  had  struck  his  daughter's  arm 
without  hurting  her,  but  sufficiently  to  cause  her  to  let  go, 
and  she  had  let  her  mother  fall,  could  any  one  doubt  but  that 
that  would  be  the  same  thing  as  if  he  had  pushed  her  out 
himself?  If  a  man  creates  in  another  man's  mind  an  imme- 
diate sense  of  danger  which  causes  such  person  to  try  to 
escape,  and  in  so  doing  he  injures  himself,  the  person  who 
creates  such  a  state  of  mind  is  responsible  for  the  injuries 
which  result.  I  think  that  in  this  case  there  was  abundant 
evidence  that  there  was  a  sense  of  immediate  dano^er  in  the 
mind  of  the  woman,  caused  by  the  acts  of  the  prisoner,  and 
that, her  injuries  resulted  from  what  such  sense  of  danger 
caused  her  to  do."  2 

Sec.  3.   Homicide    by    substituted    agent.  —  While   it    is 
true  that  one  is  guilty  of  homicide  who  by  an  act  either  di- 

1  8  Q.  B.  Div.  54  (1881)  ;   s.c.  U  2  gep  41  Alb.  L.  J.  204. 

Cox  C.  C.  3G;3. 


SEC.  4.]  AYHAT   CONSTITUTES   HOMICIDE.  5 

rectl}^  or  indirectly  causes  the  death  of  another,^  yet  where 
a  killing  is  caused  indirectly  through  an  act  of  another  person, 
the  party  indirectly  causing  such  death  is  not  guilty  of  mur- 
der even  thougli  he  be  in  a  sense  responsible  for  the  act  of 
such  other  person.''^  Thus  where  A  tells  B  facts  regarding 
C,  in  the  hope  that  the  knowledge  of  these  facts  will  induce 
B  to  murder  C  and  in  order  that  C  may  be  murdered,  but  A 
does  not  advise  B  to  murder  C,  and  B  murders  C  accordingh*, 
A  has  not  caused  C's  death  within  the  meaning  of  the  dehni- 
tion  above  given.^ 

In  Reg.  V.  Pocock  '^  it  is  said  that  where  A,  B,  and  C  are 
road  trustees  under  an  act  of  Parliament  and  as  such  under 
an  obligation  to  make  contracts  for  the  repairs  of  a  road, 
neglect  to  make  any  such  contract,  whereby  the  road  became 
out  of  repair,  and  D  passing  along  is  killed,  A,  B,  and  C  have 
not  killed  D.  In  Rex  v.  Bennett^  it  is  said  that  where 
A,  by  his  servants,  makes  fireworks  in  a  house  in  London, 
contrary  to  the  provisions  of  an  act  of  Parliament,^ 
through  the  negligence  of  his  servants,  and  without  unj  act 
of  his,  a  rocket  explodes  and  sets  fire  to  another  house, 
whereby  B  is  killed,  A  has  not  killed  B. 

But  where  a  person  holds  himself  out  as  having  skill  in  a 
particular  art,  the  proper  doing  of  which  is  necessary  to  the 
safety  of  man,  if  he  knowingly  and  wilfully  does  his  work  in 
such  a  manner  as  to  necessarily  expose  others  to  a  risk  of  life 
or  limb,  and  death  ensues  because  of  such  negligent  work, 
such  person  will  be  guilty  of  murder.  Thus  wdiere  an  iron- 
founder  who  was  ordered  to  melt  down  a  burst^d  cannon, 
repairs  it  with  lead,  and  the  cannon  afterwards  being  fired 
wdth  an  ordinary  charge  of  powder,  bursts  and  kills  a  person, 
the  founder  is  guilty  of  murder." 

Sec.  4.  Substituting  poison  for  medicine. — Where  a 
person  substitutes  poison  for  medicine,  and  death  results,  he 


1  Commonsvealtli  v.  York,  50  Mass.  ^  Stephen's  Dig.  Cr.  L.  136. 
(9  Mete.)  93  (1845);  State  v.  Hoover,  *  17  Q.  B.  34  (1851). 

4  Dev.  &  B.  (N.  C)  L.  305  (1839).  °  Bell  C.  C.  1  (1858). 

2  Rex    V.    Bennett.    Bell    C.    C.    1  6  9  &  lo  Wm.  3,  e.  77. 

(1858);  Reg.  v.  Pocock,  17  Q.  B.  34  "Rex   v.    Carr,   8    Car.    &   P.    163 

(1851);  s.c."  79  Eng.  C.  L.  34;    Ste-  (1837);  s.c.  34  Eng.  C.  L.  668. 
phen's  Dig.  Cr.  L.  136. 


6  HOMICIDE.  [chap.  I. 

is  guilty  of  murder.  Thus  where  poison  is  knowingly  ad- 
ministered as  medicine,  by  agents  who  are  ignorant  that  it  is 
poison,  and  death  ensues,  the  person  who  tlius  procures  the 
poison  to  be  taken,  is  guilty  of  murder.^  And  where  A 
substitutes  poison  for  medicine,  which  is  to  be  administered 
to  C  by  B,  and  B  innocently  administers  the  poison  to  C, 
who  dies  therefrom,  A  has  killed  C.^  And  where  a  hus- 
band gave  an  apple  to  his  wife,  intending  to  poison  her,  and 
she,  in  his  presence  and  with  his  knowledge,  gave  the  apple 
to  C,  their  child,  whom  the  husband  did  not  intend  to  poison, 
but  he  did  not  interfere  with  the  child's  eating  the  apple,  the 
child  havino-  died,  the  father  was  held  to  have  killed  it.^ 

Sec.  5.  Inf  uiticide.  —  A  child  becomes  a  human  being 
within  the  meaning  of  the  definition  above  given,  when  it 
has  completely  proceeded  in  a  living  state  from  the  body  of 
its  mother,^  whether  it  has  or  has  not  breathed,'^  and  whether 
the  navel  string  has  or  has  not  been  divided,*"  and  the 
killing  of  such  a  child  is  homicide,  whether  it  is  killed  by 
injuries  inflicted  before,  during,  or  after  birth.^  There  is  an 
objection  to  this  doctrine  on  the  part  of  Hale  and  Saunders ;  ^ 
but  the  reason  upon  which  their  opinions  seem  to  be  founded 
—  the  difficulty  of  ascertaining  the  fact  —  cannot  be  con- 
sidered as  satisfactory,  unless  it  be  supposed  that  such  fact 
can  never  be  cleaily  ascertained.^  But  it  has  been  said  that 
an  infant  cannot  be  the  subject  of  homicide  until  after  its 
complete  expulsion,  alive,  from  the  body  of  its  mother,^'' 
because  a  living  child  in  its  mother's  womb,  or  a  child  in  the 
act  of  birth,  even  though  such  child  may  have  breathed,  is 
not  to  be  regarded  as  a  human  being  within  the  meaning  of 


1  See    People    v.    Adams,    3   Den.  «  Reg.   v.  TriUoe,   Car.   &  M.  GuO 
(N.  Y.)  190,  208  (184H)  ;  s.c.  1  N.  Y.  (1842) ;  s.c.  41  Enjr.  C.  L.  (550. 

173.  "  1  Russ.  on  Or.  (otli  En>r.  id.)  640; 

2  See  Donnelland's  Case,  Stephen's  3  Co.  Inst.  50;  1  Ilnwk.  P.  C,  i:.  31, 
Gen.  View  Cr.  L.  338.  §  10;   1  East  P.  C,  e.  5.  §  14,  p.  228; 

3  Saunders'  Case,  1  Hale  P.  C.  430  4  Bl.  Comm.    198.      Com/uire   1    Hale 
(1751)  :  s.c.  2  Plow.  473.  P.  C.  432.  and  Sannd.  21. 

*  Rex  V.  I'onlton,  5  Car.  &  P.  329  »  1  Hale,  432;  Saund.  21. 

(1832) ;  s.c.  24  Eng.  C.  L.  590.  »  See  E.xod.  c.  xxi.  v.  22.  23. 

"  Rex  r.   Brain,  6  Car.   &  P.  .349  >'  Wallace  v.   Sfate,  10  Tex.  App. 

(1834) ;  s.c.  25  Eng.  C.  L.  408.  255  (1881). 


SEC.  6.]  WHAT   CONSTITUTES   HOMICIDE.  7 

the  definition  above  given,  and  the  killing  of  sucli  a  child  is 
therefore  not  homicide.^ 

Thus  the  Court  of  Appeals  of  Texas  have  said  that  where 
the  jury  might  have  concluded  from  the  evidence  that  the 
defendant  took  her  infant's  life  before  its  birth  was  complete, 
or  that  she  caused  its  death  by  means  which  she  used  merely 
to  assist  her  delivery,  the  trial  court  should  have  instructed 
for  an  acquittal  in  the  event  the  jury  should  so  find.^ 

Sec.  6.  Same  —  Stating  sex  of  child.  —  In  an  indictment 
for  infanticide,  although  convenient  and  advisable  when  it 
can  safely  be  done,  it  is  not  indispensable  that  the  sex  of  the 
murdered  child  be  stated,  even  though  its  name  be  unknown, 
or  it  has  no  name.^ 

1  Rex  V.  Enoch,  5  Car.  &  P.  539  2  Wallace  v.  State,  7  Tex.  App.  570 

(1833);  s.c.  24  Eiig.   C.  L.  529,  and  (1880). 

see  note  to  the  case;  Reg.  v.  Wriglit,  ^  State   v.   Morrissey,   70  Me.  401 

9  Car.  &  P.  754  (1841);  s.c.  38  Eng.  (1879). 
C.  L.  754;  Rex  v.  Sellis,  7  Car.  &  P. 
850  (1836)  ;  s.c.  32  Eng.  C.  L.  850.  ' 


CHAPTER   II. 

KINDS  OF   HOMICIDE. 

Sec.     7.  Classes  of  homicide. 

Sec.     8.  Justifiable  homicide. 

Sec.     9.  Homicide  in  the  execution  of  a  criminal. 

Sec.  10.  Homicide  by  an  officer  resisted  in  the  execution  of  his  duty. 

Sec.  11.  Homicide  to  prevent  a  crime. 

Sec.  12.  Same  —  In  preventing  misdemeanor. 

Sec.  13.  Same  —  In  protection  of  property,  &c. 

Sec.  14.  Homicide  while  protecting  a  federal  justice. 

Sec.  15.  Same  —  Release  on  habeas  corpus. 

Sec.  16.  Homicide  from  necessity  or  compulsion. 

Sec.  17.  Same  —  In  case  of  shipwreck. 

Sec.  18.  Same  —  Homicide  to  secure  food. 

Sec.  19.  Homicide  committed  in  war. 

Sec.  20.  Excusable  homicide. 

Sec.  21.  Same  —  Distinction  between  justifiable  and  excusable  homicide. 

Sec.  22.  Homicide  in  self-defence. 

Sec.  23.  Homicide  by  misadventure. 

Sec.  24.  Same  —  The  act  must  be  lawful. 

Sec.  25.  Same  —  Following  ordinary  occupations. 

Sec.  26.  Same  —  Administering  medicine. 

Sec.  27.  Same  —  Homicide  on  correction. 

Sec.  28.  Felonious  homicide. 

Sec.  29.  Same  —  Intent  as  an  element. 

Sec.  7.  Classes  of  homicide. —  Homicide  may  be  divided 
into  two  kinds  or  classes :  (1)  non-felonious  homicide,  and 
(2)  felonious  homicide.  The  first  class  is  divisible  into  (a) 
justifiable  homicide,  and  (/>)  excusable  homicide.  The  sec- 
ond class  may  be  divided  into  («)  suicide,  (^>)  murder,  and 
(c)  manslaughter. 

Sec.   8.    Justifiable   homicide.  —  Justifiable    homicide   is 

where  the  killing  is  in  consequence  of  an  imperative  duty 

prescrilied  l)y  law,  or  is  owing  to  some  unavoidable  necessity 

induced  by  the  act  of  the  party  killed,  without  any  manner 

8 


SEC.  9.]  KINDS   OF   HOMICIDE.  9 

of  fault  in  the  party  killing ;  ^  and  an  unintentional  homicide 
is  in  all  cases  justifiable  where  it  is  inflicted  by  a  person  in 
order  to  defend  himself  or  any  other  person  from  immediate 
and  obvious  danger  of  instant  death  or  grievous  harm,  where 
the  party  committing  the  homicide  acts  in  good  faith  and  on 
reasonable  grounds  for  a  belief  that  the  homicide  is  necessary .^ 
There  are  five  classes  of  justifiable  homicide,  as  follows :  (1) 
homicide  committed  in  the  execution  of  a  criminal,  (2)  homi- 
cide by  an  officer  in  the  execution  of  his  duty,  (3)  homicide 
to  prevent  a  crime,  (4)  homicide  from  necessity,  and  (5) 
homicide  committed  in  battle. 

Sec.  9.    Homicide    in    the   execution   of    a   criminal. — 

Where  the  proper  officer  executes  a  criminal  in  the  discharge 
of  his  official  duty,  and  in  strict  conformity  with  a  legal  sen- 
tence of  death  properly  passed  by  a  court  having  jurisdiction, 
and  upon  a  warrant  therefor  duly  issued,  the  homicide  is 
justifiable  ;  however,  if  any  person  other  than  the  proper  offi- 
cer—  such  as  a  sheriff  or  his  deputy — performs  the  office 
of  executioner,  he  is  guilty  of  miu-der.  The  prisoner  must 
have  been  found  guilty  by  a  competent  tribunal ;  because  it 
would  be  murder  otherwise  to  kill  the  greatest  of  malefac- 
tors. The  sentence  must  have  been  legally  given ;  that  is, 
by  a  court  or  judge  having  authority  to  deal  with  the  crime. 
If  judgment  of  death  is  given  by  a  judge  who  has  no  author- 
ity, and  the  accused  is  executed,  the  judge  is  guilty  of 
murder.^ 

To  relieve  the  officer  executing  a  sentence  of  death  from 
liability,  the  sentence  must  be  strictl}'  carried  out  by  him ; 
that  is,  the  sentence  as  it  stands  after  the  remission  of  any 
parts  which  the  sovereign  thinks  fit,  so  that  if  he  beheads  or 
electrocutes  a  criminal  whose  sentence  is  hanging,  or  vice 

1  See  Roscoe's  Cr.  Ev.  (9th  ed.)  blameless.  1  East  P.  C.  334.  But  it 
634;  1  East  P.  C.  219;  Hawk.  P.  C.  will  be  otherwise  where  the  judge 
b.  1,  c.  28,  §§  1,  22;  Harris'  Cr.  L.  had  no  color  of  authority-,  unless  the 
155;  1  Russ.  Cr.  (5th  Eng.  ed.)  843.  oflBcer  executing  the  judgment  acted 

2  See  Desty  Cr.  L.  §  126.  bona  fide  in  the  belief    that    he    had 

3  Where  the  judge  passing  sentence  competent  authority.  1  Hawk.  P.  C. 
has  jurisdiction,  but  tlie  proceedings  c.  10,  §  4 ;  1  Hale  P.  C.  496;  1  East 
are  known  to  him  to  be  erroneous,  he  P.  C.  334;  4  Bl.  Conim.  178.  See 
will  be  guilty  of  murder,  and  the  oflB-  United  States  r.  Carr,  1  Woods  C.  C. 
cer   executing   the    sentence    will    be  480  (1872). 


10  HO]NnClDE.  [chap.  II. 

versa,  he  is  guilty  of  murder.  Tliough  the  sovereign  may 
remit  a  part  of  the  sentence,  he  may  not  change  it.i  As  has 
already  been  said,  if  there  was  no  jurisdiction  on  the  part 
of  the  court  passing  judgment  and  issuing  the  warrant  of 
execution,  the  ofhcer  executing  such  warrant  will  be  guilty 
of  murder ;  but  where  there  is  merely  an  informality  in  the 
order  it  will  be  otherwise. - 

Sec.  10.  Homicide  by  an  officer  resisted  in  the  execu- 
tion of  his  duty.  —  Where  an  officer  of  justice,  or  other 
person  acting  in  his  aid,  in  the  legal  exercise  of  a  particular 
duty,  kills  a  person  who  resists  or  prevents  him  from  execut- 
ing'^it,  this  is  a  justifiable  homicide.  Homicide  is  justifiable 
on  this  ground  in  the  following  cases:  (1)  When  a  peace 
officer  or  his  assistant,  in  the  due  execution  of  his  office, 
whether  in  a  civil  or  criminal  case,  kills  one  who  is  resisting 
his  arrest  or  attempt  to  arrest.  (2)  When  the  prisoners  in 
jail,  or  going  to  jail,  assault  the  jailer  or  officer,  and  he,  in 
his  defence,  to  prevent  an  escape,  kills  any  of  them.  (3) 
W^hen  an  officer  or  private  person,  having  legal  authority 
to  arrest,  attempts  to  do  so,  and  the  other  flies,  and  is  killed 
in  the  pursuit.  But  here  the  ground  of  the  arrest  must  be 
either  a  felony  or  the  infliction  of  a  dangerous  wound.  (4) 
When  an  officer,  in  endeavoring  to  disperse  a  mob  or  a  riot- 
ous or  rebellious  assembly,  kills  one  or  more  of  them,  he  not 
being  able  otherwise  to  suppress  the  riot.^ 

Where  one  is  charged  with  a  felony,  and  he  resists  arrest, 
or  flies,  an  officer  with  a  warrant  is  justified  in  killing  him, 
and  he  may  do  so  without  a  warrant  on  a  probable  suspicion 
founded  on  his  OAvn  knowledge,  or  the  information  of  others  ;* 
so  also  a  killing  to  prevent  an  escape  after  a  felony  has  been 


1  Harris'  Cr.  L.  155;  4  Bl.  Conim.  ^  Harris'  Cr.  L.  155. 

179;  ;}  Co.  Inst.  52,  211;  1  Hale  V.  C.  *  Sue    Clements  r.    State,  50   Ala. 

501;  2  Hale  P.  C.  411.  117   (1874)  ;  State  v.  Garrett,  Winst. 

2  State  V.  Garrett,  Winst.  (N.  C.)  (N.  C.)  L.  144  (1808)  ;  Wolf  v.  State, 
L.  144  (1808)  ;  Wolf  v.  State,  10  Ohio  19  Ohio  St.  248  (1809);  State  r.  Ander- 
St.  248  (1809);  State  v.  Anrlerson,  son,  1  Hill  (S.  C.)  L.  327  (18:]:]); 
1  Hill  (S.  C.)  L.  .827  (18:58)  ;  United  United  States  v.  Rice,  1  Huphes  C.  C. 
States  V.  Rice,  1  Hiinhes  C.  C.  500  500  (1875);  Reg.  v.  Dadson,  2  Den. 
(1875).  See  Clements  v.  State,  50  C.  C.  35  (1850);  1  East  P.  C.  298; 
Ala.  117  (1874).  2  Hale  P.  C.  65. 


SEC.  10.]  KINDS    OF   HOMICIDE.  11 

actually  committed  is  justifiable ;  ^  but  in  such  a  case  abso- 
lute necessity  alone  will  justify  the  killing,^  and  it  must  also 
appear  that  the  object  of  the  officer  was  avowed.^  An  officer 
attempting  to  suppress  riots,  routs,  or  unlawful  assemblies 
will  be  justified  in  committing  homicide  where  it  is  necessary 
to  arrest  the  offenders  ;  and  where  several  persons  resolve  to 
resist  officers,  the  officers  Avill  be  justified  in  any  necessary 
killing,  and  all  persons  so  resisting  are  principals  in  the  mur- 
der or  manslaughter  which  ensues,^  where  they  act  by  a 
common  design.'^ 

Where  an  officer  has  been  selected  and  charged  with  the 
duty  of  protecting  a  justice  of  the  court  when  threatened 
Avith  personal  violence,  he  will  be  justified  in  taking  the  life 
of  any  one  attacking  such  judge,  if  he  acts  bona  fide  and  the 
circumstances  are  such  as  warrant  Iiim  in  believing  that  such 
killing  is  necessary.*^ 

Bat  a  voluntary  killing  in  attempting  to  arrest  one  charged 
with  a  misdemeanor  is  murder."  In  such  a  case  life  can 
be  taken  only  in  self-defence  where  the  party  sought  to  be 
arrested  resists  with  force,  and  not  merely  escapes,  or  seeks 
to  escape.^  A  preparation  to  resist  or  a  mere  attempt  at 
defence  will  not  justify  a  killing.^ 

Where  a  percou  is  in  custody  of  an  officer  charged  Avith 
a  misdemeanor  and  attempts  to  escape,  the  officer  will  not 
be  justified  in  killing  him  to  prevent  such  escape.^''  In 
Reneau  v.  State  ^^  the  court  say :  "  The  law  on  this  sub- 
ject is,  in  substance,  that  an    officer  having  a  prisoner   in 

1  State  V.  Rutherford,  1  Hawks.  ^  See  In  re  Neagle,  39  Fed.  Rep. 
(N.  C.)  457  (1821);  State  v.  Roane,  8.38  (1889);  s.c.  12  Cr.  L.  Mag.  21; 
2  Dev.  (X.  C.)  L.  58  (1828).  s.c.  on  appeal  sub  nom.  Cunningliam  v. 

2  Williams  V.  State,  44  Ala.  41  Neagle,  135  U.  S.  1  (1890)  ;  bU.  34,  L. 
(1870).  ed.  55;  s.c.  41   Alb.   L.  J.  367,  429. 

3  State  V.  Roane,  2   Dev.    (N.  C.)  See  n\so  jwst,  §§  1,  11,  14. 

L.  58  (1828).  ■  Williams    v.  State,    44    Ala.   41 

*Brennan    v.   People,    15    HI.    511  (1870). 
(1854)  ;  State   v.    Simmons,   G  Jones  »  posj    971 ;  1  Hale  P.  C.  481 ;    1 

(N.    C.)    L.    21     (1858)  ;    Ruloff    v.  East  P.  C.  302. 

People,  45  N.Y.  213  (1871);  Hunling  9  Clements    v.    State,   50    Ala.    117 

V.    State,    17    Oliio    St.   583    (1867);  (1874). 

United  States  v.  Ross,  1  Gall.  C.  C.  ^^  Reneau  v.  State,  2  Lea  (Tenn.) 

624  (1813).  720  (1879)  ;  s.c.  2  Am.  Cr.  Rep.  624. 

5  Reg.  V.  Turner,  4  Post.  &  F.  339  "  2  Lea   (Tenn.)   720  (1879)  ;  s.c. 

(1864).  2  Am.  Cr.  Rep.  624. 


12  HOMICIDE.  [chap.  II. 

custody  for  felony,  who  attempts  escape,  will  be  excused  for 
killing  him  if  he  cannot  otherwise  be  retaken ;  but  if  he  can 
be  otherwise  retaken,  in  any  case,  without  resort  to  such 
harsh  measures,  it  will  be  at  least  manslaughter  to  kill  him. 
But  in  cases  where  the  person  slain  is  arrested  or  held  in 
custody  for  a  misdemeanor,  and  he  flies,  or  attempts  to 
escape,  it  will  be  murder  in  the  officer  to  kill  him,  although 
he  cannot  be  otherwise  overtaken;  yet,  under  some  circum- 
stances, it  may  be  only  manslaughter,  as  where  it  appears 
that  death  was  not  intended."  ^ 

Sec.  11.  Homicide  to  prevent  a  crime.  —  Wliere  the 
homicide  is  committed  in  the  prevention  of  a  forcible  and 
atrocious  crime,  it  is  justifiable  ;  ^  thus,  where  there  is  a  well- 
founded  belief  that  a  known  felony  is  about  to  be  perpe- 
trated, this  will  extenuate  a  homicide  committed  to  prevent 
it.^  A  woman  is  justified  in  killing  one  who  attempts  to 
ravish  her ;  and  so,  too,  the  husband  or  father  may  kill  a 
man  who  attempts  a  rape  on  his  wife  or  daughter,  if  she  does 
not  consent.  And  even  if  the  adultery  is  by  the  consent  of 
the  wife,  the  husband,  taking  the  offender  in  the  act  and 
killing  him,  is  guilty  of  manslaughter  only.^  But  a  homicide 
to  prevent  an  atrocious  crime,  such  as  murder  or  manslaugh- 
ter, and  the  like,  is  justifiable  only  when  done  in  good  faith, 
and  after  the  use  of  all  other  reasonable  means  within  the 
power  of  the  slayer  to  prevent  the  crime,  and  in  such  a  case 
the  burden  is  always  on  him  to  show  that  he  was  without 
fault.^  To  justify  such  a  killing  there  must  be  reasonable 
grounds  to  believe  that  a  felony  is  about  to  be  committed.^ 

1  Citin},'  Bishop's  Cr.  L.  §§  648,  049.  C.  C.  620  (1868)  ;  Reg.  v.  Bull,  9  Car. 

2  Dill  V.  State,  25  Ala.  lo  (1854)  ;  &  P.  22  (18:^9);  s.c.  38  Eng.  C.  L. 
Oliver  v.  State,  17  Ala.  587  (1850);  25;  1  Kuss.  on  Cr.  (5th  Eng.  ed.)  849; 
State  f.Kennedy,20  Iowa,  560  (18()())  ;  Fost.  27-3;  1  Hale  P.  C  445,  481  et 
State  V.  Tiiompson,  9  Iowa,  188  (1859) ;  secj. ;  1  Hawk.  P.  C,  c.  28,  §§  21 ,  24. 
g.c.  74  Am.  Dec.  342;  Bohannon  v.  8  state  v.  Rutherford,  1  Hawks. 
Commonwealth,  8  Bush  (Ky.)  481  (N.  C.)  457  (1821)  ;  s.c.  9  Am.  Dec. 
(1871);  s.c.  8  Am.  Rep.   474;    Com-  658. 

moiiwi-alth  i\  Riley,  Thach.  Cr.  Cas.  *  Harris'  Cr.  L.  157. 
(Mass.)  471    (1837)  ;  Pond  y.  People,  ^  Mitchell    r.    State,    22    Ga.    211 
8  Mich.  150  (1860)  ;  Huloff  v.  People,  (1857) ;  s.c.  68  Am.  Dec.  493. 
45  N.  Y.  213  (1871)  ;  State  r.  Rather-  ^  Keener  i;.  State,  18  Oa.  194  (1855); 
ford,    1    Hawks.   ("X.  C.)  457   (1H21);  s.c.  03  Am.  Dec.  269 ;  Youhl'  /•.  Corn- 
United  States  V.  Uuterbridge,  5  Sawy.  monwealth,  6  Bush  (Ky.)  312  (1869). 


.  I 


SEC.  12,]  KINDS   OF   HOMICIDE.  13 

A  reasonable  apprehension  is  sufficient ;  ^  but  it  seems  that 
such  apprehension  must  have  been  excited  by  an  actual 
assault  ^  of  such  a  character  as  to  afford  reasonable  around  to 
believe  that  the  design  was  to  destroy  life  or  commit  a  felony 
upon  the  person  assaulted,  or  to  do  some  bodily  injury.^  A 
non-felonious  assault  will  in  no  case  justify  a  homicide  to  pre- 
vent it ;  *  and  a  homicide  committed  in  the  prevention  of  a 
crime  unaccompanied  with  force,  is  not  within  the  protection 
of  the  rule ;  such  as  picking  pockets,  and  the  like.^  It  is 
said  in  State  v.  Hill'^  that  resistance  to  an  assault,  if  the  lat- 
ter be  not  commenced  with  intent  to  commit  murder,  where 
such  resistance  is  entirely  disproportionate  to  the  violence  of 
the  original  attack,  such  resistance  essentially  changes  the 
character  of  the  combat  and  renders  the  assaulted  party 
assailant,  and  in  such  case,  if  homicide  is  committed,  the 
party  is  guilty  of  murder. 

Sec.  12.  Same  —  In  preventing  niisclemeanor.  —  Homi- 
cide is  not  justifiable  to  prevent  misdemeanors,  or  even 
felonies,  without  force ; '  thus,  deliberately  killing  a  man  to 

Pond  V.  People,  8  Mich.  150  (1860);  Decklotts,  19  Iowa,  447  (1865)  ;  State 

State  r.  Rutherford,  1  Hawks.  (N.  C.)  i'.    Thompson,    9   Iowa,    188    (1859); 

457    (1821);    s.c.    9    Am.    Dec.    658;  Bohannon  v.  Commonwealth.,  8  Bush 

State  r.  Harris,  1  Jones   (N.  C.)   L.  (Ky.)  481    (1871)  ;    State   v.    Roane, 

190   (1858);    Stoneman   v.   Common-  2  Dev.  (N.  C.)  58  (1828);  Stewart  v. 

wealth,  25  Gratt.  (Va.)  887  (1874).  State,  1  Ohio  St.  66  (1852) ;  Common- 

1  State  V.  Chandler,  5  La.  An.  489  wealth  v.  Drum,  58  Pa.  St.  9  (1868)  ; 
(1850');  s.c.  52  Am.  Dec.  590;  Pond  United  States  r.  Wiltberger,  3  Wash, 
r.  People,  8  Mich.  150  (1860)  ;  Staten  C  C.  515  (1819).  See  Rippy  r.  State, 
V.  State,  30  Miss.  619  (1856);  State  2  Head  (Tenn.)  217  (1858);  Reg.  v. 
V.  Roane,  2  Dev.  (N.  C.)  L.  58  (1828)  ;  Dadson,  2  Den.  C.  C.  35  (1850). 
State  i:  Rutherford,  1  Hawks.  (N.  C.)  ^  i  Hale,  486;  4  Bl.  Conim.  180. 
457  (1821)  ;  s.c.  9  Am.  Dec.  658.  See  1  East  P.  C,  c.  4,  §§  45,  273. 

2  State   V.   King,   22  La.  An.   454  6  4  Dev.  &  B.  (N.  C.)  L.  491  (1839); 
(1870)  ;  State  v.  Chandler,  5  La.  An.  s.c.  34  Am.  Dec.  396. 
489(1850);  s.c.  52  Am.  Dec.  599.  "See   Noles    v.    State,   26   Ala.   31 

3  Noles  V.  State,  26  Ala.  31  (1855)  ;  (1855)  ;  s.c.  62  Am.  Dec.  711 ;  Harri- 
s.c.  62  Am.  Dec.  711;  State  r.  Chand-  son  v.  State,  24  Ala.  67  (1854)  ;  s.c. 
ler,  5  La.  .^n.  489  (1850);  s.c.  52  Am.  60  Am.  Dec.  450;  Carroll  v.  State, 
Dec.  599;  Staten  v.  State,  30  Miss.  23  Ala.  28  (1853);  s.c.  58  Am.  Dec. 
619  (1856);  Stoneman  v.  Common-  282;  Carmouche  v.  Bonis,  6  La.  An. 
wealth,  25  Gratt.  (Va.)  887  (1874).  95    (1851);    s.c.    54   Am.    Dec.    558; 

1  Oliver  v.  State,  17  Ala.  587  (1850);  McDaniel  v.  State,  16  Miss.  (8  Smed. 

Keener  v.  State,  18  Ga.  194  (1855);  &  M.)  401  (1847)  ;  s.c.  47  Am.  Dec. 

s.c.  63  Am.  Dec.  269;  State  ;•.  Ken-  93:    Roberts    r.    State,    14    Mo.    138 

nedy,  20  Iowa,  569  (1866)  ;   State  v.  (1854)  ;  s.c.  55  Am.  Dec.  97. 


14  HOMICIDE.  [chap.  II. 

prevent  mere  trespass  upon  property  is  murder,  whether  such 
trespass  couhl  or  could  not  be  otherwise  prevented.^  And 
such  killing  will  be  murder,  although  unintentionally  done, 
if  committed  with  a  deadly  weapon.^ 

Sec.  13.    Same — In  protection  of  property,  &c. — It  is 

said  that  a  party  may  repel  force  by  force  in  defence  •  of  his 
person,  habitation,  or  property,  against  one  who  manifestly 
intends  or  endeavors,  by  violence  or  surprise,  to  commit  a 
felony  on  either,  and  if  a  conflict  ensues  and  he  takes  life, 
the  act  is  justifiable ;  ^  and  it  has  been  held  by  the  supreme 
court  of  Kentucky  *  that  one  having  property  in  a  warehouse 
well  Secured  under  locks  may  erect,  as  an  additional  protec- 
tion at  night,  a  spring-gun  to  explode  on  entering  the  house. 
The  court  say :  "  It  would  seem  that  the  right  of  killing  to 
prevent  the  perpetration  of  crime  depends  more  upon  the 
character  of  the  crime  and  the  time  and  manner  of  its 
attempted  perpetration,  than  upon  the  degree  of  punishment 
attached  to  it  l)y  law,  or  upon  the  fact  of  its  being  designated 
in  the  penal  code  as  a  felony  or  not.  A  name  can  neither 
add  to  nor  detract  from  the  moral  qualities  of  a  crime  ;  and, 
in  the  eye  of  reason  and  justice,  the  intrinsic  nature  of  the 
offence,  together  with  the  time  and  manner  of  its  attempted 
commission,  must  ever  test  the  legality  of  the  means  resorted 
to  for  its  prevention." 

But  the  supreme  court  of  Alabama  say  in  the  case  of 
Noles  V.  State,^  that  a  mere  trespass  upon  the  person-  and 
liberty  of  the  slayer  Avhich  created  no  reasonable  belief  in  his 
mind  that  any  of  the  trespassers  would  commit  any  felony,  or 
do  him  any  great  bodily  harm,   will  not   excuse   liis  killing 

1  Harrison    v.    State,    24    Ala.    07  2  McDanicl    v.   State,   10  Miss.    (8 

(18.34)  ;   s.c.  00  Am.  Dec.  450;  Car-  Smed.  &  M.)  401  (1847)  ;  s.c.  47  Am. 

roll  V.  State,  23  Ala.  28  (1853)  ;  s.c.  Dec.  93;  Roberts  c.  State,  14  Mo.  138 

58  .\m.  Dec.  282.     In  Carroll  v.  State,  (1851)  ;  s.c.  55  Am.  Dec.  07. 
23  Ala.  28  (1853);  s.c.  58  Am.  Dec.  3  State  r.  Tliompson,  9  Iowa,  188 

282,  it  is  said  that  a  mere  civil  tres-  (1859)  ;    s.c.  74   Am.  Dec.  .342.      See 

pass  upon   a   man's   bouse,  unaccom-  poM,  §  107. 

panied  by  such  force  as  to  make  it  a  *  See  (Iray  r.  Combs,  7  J.  J.  Marsh, 

breach  of  the  peace,  is  not  a  sufficient  (Ky.)  478   (1832)  ;    s.c.  23  Am.  Dec. 

provocation  to  reduce  the  killin<j  of  431. 

the  trespasser  to  manslauirhter,  if  com-  ''20   .Via.   31    (1855);    s.c.  02  .\m. 

mitted  under  circumstances  from  which  Dec.  711. 
the  law  would  imply  malice. 


SEC.  15.]  KINDS   OF   HOMICIDE.  15 

such  trespassers.  •  The  court  say :  "  When  such  trespass  is 
threatened  or  committed,  he  has  no  right  to  kill,  unless  the 
unlawful  act,  when  properly  and  unlawfully  resisted  b}'  him, 
is  persisted  in  by  the  trespasser  until  it  ultimately  results 
either  in  an  actual  necessity  on  his  part  to  kill  in  order  to 
prevent  the  commission  of  a  felony  or  great  bodily  harm,  or 
the  reasonable  belief  by  him  of  the  existence  of  such  neces- 
sity."  1 

Sec.  14.   Homicide  while  protecting  a  federal  justice.  — 

It  has  been  held  to  be  within  the  powder  of  the  government  of 
the  United  States  to  protect  all  the  agencies  and  instrumen- 
talities necessary  to  accomplish  the  objects  and  purposes  of 
that  government.  It  is  therefore  empowered  to  protect  the 
lives  of  the  justices  of  the  Supreme  Court  from  assault  and 
assassination,  on  account  of  their  judicial  decisions,  by  des- 
perate, disappointed  litigants,  not  only  while  actually  hold- 
ing court,  but  while  such  justices  are  travelling  through  their 
circuits  for  the  purpose  of  holding  courts  at  the  different 
places  appointed  by  law  for  such  courts  to  be  held.^ 

An  assault  upon,  or  an  assassination  of,  a  judge  of  the 
United  States  court,  while  engaged  in  any  matter  pertaining 
to  his  official  duties,  on  account  or  by  reason  of  his  judicial 
decisions  or  action  in  performing  his  official  duties,  is  a  breach 
of  the  peace,  affecting  the  authority  and  interests  of  the 
United  States,  and  within  the  jurisdiction  and  power  of  the 
United  States  marshal,  or  his  deputies,  to  prevent,  as  a  peace 
officer  of  the  national  government.^ 

Sec.  15.  Same  —  Release  on  habeas  corpus.  —  Where  a 
deputy  United  States  marshal,  acting  under  instructions 
from  his  superior  officers,  —  such  as  the  United  States  mar- 
shal and  the  attorney  general,  —  in  protecting  the  life  and 
person  of  a  justice  of  the  Supreme  Court  of  the  United  States 
from  a  murderous  assault,  made  on  account  of  his  judicial 
decisions,  at  the  hands  of  a  dissatisfied  litigant,  finds  it  neces- 
sary to  take  the  life  of  the  assailant,  and  is  arrested  by  the 

1  See  Carroll  v.  State,  2.3  Ala.  28  (1889);    s.r.  12  Cr.  L.  Marr.  21;    40 

(1858);  s.c.  58  Am.  Dec.  282;  State  Alb.  L.  .T.   284;    affirmerl    on    appeal 

V.   Craton,    6    Ired.    (N.    C.)    L.    104  sub  nom.   Cunninpham  r.  Neagle,  135 

(1845).  U.  S.  1  (1890) ;   bk.  .34  L.  ed.  55;  s.c. 

^  In   re   Neagle,  39  Fed.  Rep.  833  41  Alb.  L.  J.  367,  429. 


16  HOMICIDE.  [chap.  II. 

State  authorities,  and  held  upon  a  charge  of  murder  for  such 
act,  the  United  States  circuit  court  may,  upon  habeas  corpus, 
discharge  such  United  States  officer  from  the  custody  of  the 
state  authorities,  upon  it  being  shown  that  the  homicide  was 
necessary,  or  that  it  was  reasonably  apparent  to  the  mind  of 
the  deputy-marshal,  at  the  time  and  under  the  circumstances 
surrounding  him,  that  the  killing  w\as  necessary  in  order  to 
protect  and  defend  the  justice  from  great  bodily  injury  or  to 
save  his  life.  The  homicide  in  such  case,  if  an  offence  at  all, 
is  an  offence  under  the  laws  of  the  state,  and  only  the  state 
can  deal  with  it  in  that  aspect.  It  is  not  claimed  to  be  a 
crime  punishable  under  the  laws  of  the  United  States.  But 
the  homicide,  when  necessarily  committed  by  a  deputy-mar- 
shal in  the  performance  of  his  duty,  in  protecting  the  life  and 
person  of  a  justice  of  the  United  States  Supreme  Court  from 
assault  and  violence  because  of  his  judicial  decisions,  is  an 
"  act  done  in  pursuance  of  a  law  of  the  United  States,"  and 
is  not  and  cannot,  therefore,  be  an  offence  against  the  laws 
of  the  state,  no  matter  what  the  statute  of  the  state  may  be ; 
the  laws  of  the  United  States  being  the  supreme  law  of  the 
land.i 

Sec.   16.    Homicide    from    necessity    or    compulsion. — 

Where  an  act  is  done  from  necessity  or  under  compulsion,  no 
presumption  of  criminal  intent  arises  ;  ^  and  a  homicide  under 
such  circumstances  may  be  justified  on  the  ground  of  necessity 
alone  ;-^  but  the  necessity  must  be  apparent,*  actual,  imminent,^ 

1  In  re  Neagle,  39  Fed.  Rep.  833  70;  State  v.  Wells,  1  Cox  (N.  J.)  424 
(188!>);  s.c.  12  Cr.  L.  Mag.  21;  40  (1790);  s.c.  1  Am.  Dec.  211;  State 
Alb.  L.J.  284;  s.c.  affirmed  on  appeal  v.  Hill,  4  Dev.  &  B.  (N.  C.)  L.  491 
sub  nom.  Cunningham  v.  Neagle,  135  (1839);  s.c.  34  Am.  Dec.  396;  Penn- 
U.  S.  1  (1890);  bk.  34  L.  ed.  55;  s.c.  sylvania  v.  Robertson,  Addis.  (Pa.) 
41  Alb.  L.  J.  3G7,  429.  240  (1794)  ;   Isaacs  v.  State,  25  Tex. 

2  Oliver  r.  State,  17  Ala.  587  (1850);  174  (1860);  United  States  r.  Wilt- 
1  Bish.  Cr.  L.  (Otli  ed.)  §  346;  1  bcrger,  3  Wash.  C.  C.  515  (1819); 
Whart.  Cr.  L.  (8th  ed.)  §  95;  4  Bl.  1  Whart.  Cr.  L.  (8th  ed.)  §  510;  4 
Comm.  28;  1  Hale  P.  C.  43,  52.  Bl.  Comm.  178. 

3  Davison  r.  People,  90  111.  221  *  Dupree  ;•.  State,  33  Ala.  380 
(1878);  State  v.  Benham,  23  Iowa,  (1859);  s.c.  73  Am.  Dec.  422;  Ken- 
154  (1867);  s.c.  92  Am.  Dec.  417;  nedy  r.  Commonwealth,  14  Bush  (Ky.) 
Kennedy  v.  Commonwealth,  14  Bush  341  (1878)  ;  Farris  v.  Commonwealth, 
(Ky.)  .341  (1878);  People  r.  Doe,  14  Bush  (Ky.)  .363  (1878)  ;  Common- 
1  Mich.  451  (1850)  ;  Slate  v.  Shippei/,  wealth  r.  Drum,  58  Pa.  St.  9  (1868). 
10  Minn.  223  (1805)  ;  s.c.  88  Am.  Dec.  &  Dupree  v.  State,  33  Ala.  380  (1859) ; 


SEC.  16.] 


KINDS    OF   HOMICIDE. 


17 


absolute,^  and  there  must  be  no  other  probable  or.  possible 
means  of  escape.^  The  necessity  must  be  great  and  must 
arise  from  immediate  peril  to  life  or  limb,^  and  in  such 
circumstances,  to  render  the  homicide  justifiable,  the  killing 
must  be  necessary  in  order  to  save  life  or  to  save  from  great 
bodily  harm.'* 

The  homicide  will  not  be  excused  unless  the  slayer  acted 
in  the  honest  and  well-founded  belief  that  it  was  necessary 
to  take  the  life  of  the  deceased  in  order  to  save  the  life  of 
himself  or  anothe'r,  and  there  must  have  been  a  reasonable 
cause  to  excite  such  an  apprehension  in  a  reasonable  mind.-^ 
Thus  it  has  been  said  that  the  fears  of  a  coward  do  not  justify 
a  homicide,  but  that  to  have  such  an  effect  the  fears  of  the 
slayer  must  have  been  those  of  a  reasonable,  courageous,  and 
self-possessed  man.*^  The  necessity  justifying  the  homicide 
does  not  arise  until  after  the  slayer  has  employed  all  the 
means  in  his  power  to  avert  the  necessity."  The  Supreme 
Court  of  Minnesota  say  in  the  case  of  State  v.  Shippey®  that 


s.c.  73  Am.  Dec.  422 ;  Farris  v.  Com- 
monwealth, UBusli  (Ky.)  363  (1878); 
Kennedy  v.  Conimonwealtii,  14  Biisii 
(Ky.)  341  (1878)  ;  McDaniel  v.  State, 
16  Miss.  (8  Snied.  &  M.)  401  (1847)  ; 
s.c.  47  Am.  Dec.  93;  State  v.  Koane, 
2  Dev.  58  (1828)  ;  State  v.  Butherford, 
1  Hawks.  (N.  C.)  457  (1821)  ;  s.c.  9 
Am.  Dec.  058 ;  Commonwealth  v. 
Drum,  58  Pa.  St.  9  (1868)  ;  Rex  v. 
Scully,  1  Car.  &  P.  319  (1824)  ;  s.c. 
12  Eng.  C.  L.  319 ;  Rex  v.  Longden, 
Russ.  &  R.  228  (1812).  See  March 
V.  Walker,  48  Tex.  372  (1877). 

1  People  V.  Travis,  56  Cal.  251 
(1880);  s.c.  6  Pac.  C.  L.  J.  534; 
Mitchell  V.  State,  22  Ga.  211  (1857)  ; 
s.c.  68  Am.  Dec.  493  ;  Davison  v.  Peo- 
ple, 90  111.  221  (1878\ 

2  State  V.  Shippey,  10  Minn.  223 
(1865);  s.c.  88  Am,  Dec.  70;  People 
V.  Sullivan,  7  N.  Y.  .396  (18-52)  ;  Com- 
monwealth V.  Drum,  58  Pa.  St.  9 
(1868). 

^  Commonwealth  v.  Drum,  58  Pa. 
St.  9  (1868). 

*  Commonwealth  v.  Drum,  58  Pa. 
St.  9  (1868).  See  Killen  r.  State,  -50 
Ga.  223  (187.3)  ;  Oneal  v.  State,  47  Ga. 


229  (1872)  ;  Pound  v.  State,  43  Ga. 
89  (1871);  Buchanan  v.  State,  24 
Ga.  282  (1858)  ;  Teal  v.  State,  22  Ga. 
75  (1857);  s.c.  68  Am.  Dec.  482; 
Armistead  v.  State,  18  Ga.  704  (1855)  ; 
Haynes  r.  State,  17  Ga.  465  (1855); 
Davis  V.  State,  10  Ga.  101  (1851). 

s  Jackson  v.  State,  6  Baxt.  (Tenn.) 
457  (1874)  ;  Rippy  v.  State,  2  Head 
(Tenn.)  217  (1858);  Williams  v.  State, 
3  Heisk.  (Tenn.)  ,376  (1872);  s.c.  1 
Gr.  Cr.  Rep.  257.  See  Oliver  v.  State, 
17  Ala.  587  (1850)  ;  People  v.  Hurley, 
8  Cal.  .390  (1857)  ;  Kennedy  v.  Com- 
monwealth, 14  Bush  (Ky.)  .341  (1878); 
Young  V.  Commonwealth,  6  Bush 
(Ky.)  319  (1869);  Philips  v.  Com- 
monwealth, 2  Duv.   (Ky.)  328  (186-5). 

6  Teal  V.  State,  22  Ga.  75  (1857)  ; 
s.c.  68  Am.  Dec.  482. 

■  Atkins    V.    State,    16    Ark.    568 
(18-55)  ;    State  v.  Shippey,   10  Minn. 
223    (1865);    s.c.   88   Am.    Dec.   70 
Edwards  f.  State,  47  Miss.  581  (1873) 
People  V.  Sullivan,  7  N.  Y.  -396  (1852) 
State  )'.  Martin,  .30  Wis.  216  (1872). 

8  10  Minn.  223  (1865)  ;  s.c.  88  Am 
Dec.  70. 


18  HOMICIDE.  [chap.  II. 

''  it  is  not  enough  that  the  party  believed  himself  in  danger, 
unless  the  facts  and  circumstances  were  such  that  the  jury 
can  say  he  had  reasonable  grounds  for  his  belief.^  In  Ten- 
nessee, I  believe,  it  has  been  held  otherwise  ;2  but  I  think 
this  decision  stands  alone,  unsupported  by  either  principle 
or  authority.  Such  belief  would  perhaps  reduce  the  crime  to 
manslaugliter,  but  Avhether  it  would  or  not  it  is  not  necessary 
to  decide  in  this  case." 

All  homicides  committed  under  compulsion  of  law  are 
excusable  on  the  ground  that  there  is  no  exercise  of  will,^ 
such  as  killing  to  save  life,^  to  prevent  an  escape  after  a 
felony  has  been  committed,^  or  where  one  is  attacked  bj^  a 
rufhan.*^ 

Sec.  17.  Same  —  In  case  of  shipwreck.  —  It  is  said  in 
the  case  of  United  States  v.  Holmes'^  that  in  all  cases  of 
shipwreck  where  it  is  necessary  that  a  part  should  be  sacri- 
ficed in  order  that  the  remainder  might  be  saved,  and  the 
peril  is  so  sudden  and  overwhelming  as  to  leave  no  choice 
of  means  and  no  moment  for  deliberation,  that  a  person  will 
be  justified  in  sacrificing  the  life  of  another  in  his  own  inter- 
ests ;  but  in  other  circumstances  the  decision  by  lot  should 
])e  resorted  to.  It  seems,  however,  that  seamen  have  no 
right,  even  in  cases  of  extreme  peril,  to  sacrifice  the  lives 
of  passengers  for  the  sole  purpose  of  saving  their  own. 

Sec.  18.  Same  —  Homicide  to  secure  food.  —  The  volun- 
tary killing  of  a  human  being  in  order  to  use  his  flesh  for  the 
preservation  of  the  lives  of  those  conmiitting  the  homicide  is 
a  criminal  offence,  even  though  the  slayers  are  at  the  time 
drifting  in  the  middle  of  the  ocean  and  the  flesh  of  the  slain 
is  necessary  to  prolong  their  lives.^     Thus  the  English  High 

1  See  Shorter  I'.  People,  2  N.  Y.  103  ■'Oliver    v.     State,     17    Ala.    587 

(1849)  ;  s.c.  51  Am.  Dec.  28G;  United  (1850). 

States    V.   Vigol,   2    Dall.    C    C.   340  ^  State    v.    Rutherford,    1    Hawks. 

(1795);    Whart.  Cr.  L.   380;   Archb.  (N.  C.)  457  (1821);  s.c.  9  Am.  Dec. 

(Jrim.  I'r.  &  Pi.  798.  058. 

■■^  Granger  v.  State,  5  Yerg.  (Tenn.)  «  People  v.  Doe,  1  Mich.  451  (1850). 

459  (1830)  ;  s.c.  26  Am.  Dec.  278.  '  1  Wall.  C.  C.  Jr.  1  (1842). 

••'  See  1  Jiish.  Cr.  L.  (0th  ed.)  347  ;  »  In  re  Dudley  (tlie  "ISIionnnette  " 

1  Whart.  Cr.  L.  (8tl»  ed.)  §  94 ;  4  Bl.  Case),  0  Cr.  L.  Mag.  95  (1884)  ;   s.c. 

Comm.  28,  179^  1  Hale  P.  C.  43.  on   appeal   0  Am.  Cr.  L.   Mag.  204; 

2  Am.  L.J.  37. 


SEC.  19.]  KINDS    OF   HOMICIDE.  19 

Court  of  Queen's  Bench,  in  the  case  of  Reg.  v.  Dudley,^ 
which  Avas  one  of  the  "•  Mignonette  "  cases,  and  was  the  trial 
at  Exeter  of  an  indictment  for  murder  on  tlie  high  seas,  the 
jury  returned  a  special  verdict  to  the  effect  that  the  prisoners, 
Avith  one  B.,  all  able-bodied  English  seamen,  and  the  deceased, 
were  cast  away  in  a  storm  on  the  high  seas,  and  compelled 
to  put  out  in  an  open  boat;  that- they  had  in  this  boat  no 
supply  of  water,  and  no  food  except  two  tins  of  turnips,  and 
that  when  they  had  been  seven  days  without  food  and  five 
without  water,  Dudley  proposed  to  Stephens  and  B.  that  lots 
should  be  cast  who  should  be  killed  to  save  the  rest;  that 
B.  refused,  and  it  was  not  put  to  the  deceased ;  that  subse- 
(juently  Dudley  proposed  that  the  deceased  should  be  killed ; 
that  Stephens  consented,  but  B.  refused;  that  the  deceased 
was  then  helpless  and  unable  to  resist,  and  did  not  assent  to 
be  killed;  that  Dudley,  with  the  consent  of  Stephens,  killed 
the  deceased,  and  that  the  three  men  fed  on  his  flesh  for  four 
days,  when  they  were  picked  up  by  a  passing  ship  and  landed 
at  Falmouth ;  that  if  they  had  not  so  fed  on  the  flesh  of 
deceased,  they  would  probably  not  have  survived  to  be  res- 
cued ;  that  at  the  time  the  deceased  was  killed  there  was  no 
reasonable  prospect  of  relief,  and  tliat  there  was  no  apprecia- 
ble chance  of  saving  life  except  by  killing  some  one  for  the 
others  to  eat,  but  that  there  was  no  greater  necessity  for 
killing  the  deceased  than  any  of  the  others.  The  court  held 
that  upon  these  findings  the  piisoners  Avere  guilty  of  murder.^ 

Sec.  19.    Homicide  committed  in  war.  —  Where  a  person 

1  14  Q.  B.  Div.  273  &  5G0  (1884)  ;  who  liad  proposed  it.  No  one  wished 
s.c.  0  Cr.  L.  Mag.  oOl.  to  perform  the  office  of  butclier,  and 

2  Nicola  us  Tiilpius,  in  the  work  lots  were  again  cast  to  provide  one. 
"Observationem  Medicaruni,"  written  Tiie  body  was  afterwards  eaten.  At 
in  1(!41,  gives  an  instance  where  seven  lengtJi  the  boat  was  cast  on  the  shore 
Englislinien  liad  prepared  tliemselves  of  tlie  Isle  of  St.  Martin  (one  of  tlie 
in  tlie  Island  of  St.  Christopher  (one  same  group),  where  the  six  survivors 
of  the  Caribbean  Islands)  for  a  cruise  were  treated  with  kindness  by  the 
in  a  boat  for  a  period  of  one  night  Dutch,  and  sent  home  to  St.  Christo- 
only,  buta  storm  drove  them  so  far  pher.  The  slayers  on  their  return 
out  to  sea  that  they  could  not  get  from  St.  Martin,  which  was  about 
back  to  port  for  seventeen  days.  One  seven  leagues  away,  were  arrested  by 
of  them  proposed  that  they  should  an  officer  and  brought  to  trial,  but 
cast  lots  to  settle  on  whose  body  they  were  let  go  because  "  the  inevitable 
should  assuage  their  ravenous  hunger,  necessity  had  washed  away  their 
Lots  were  cast,  and  the  lot  fell  on  him  crime." 


20  HOMICIDE.  [chap.  II. 

is  ill  an  army  bearing  arms  under  a  sovereign,  and  in  the 
course  of  his  profession  commits  a  homicide  by  command  of 
his  sovereign  or  his  superior  officer,  he  is  not  amenable  to 
the  civil  law,  and  cannot  be  punished  therefor  in  the  civil 
courts ;  ^  the  case  is  against  the  sovereign  and  not  the  snl>- 
ject.2  The  same  is  thought  to  be  true  also  in  those  cases 
where  an  incidental  act  is  committed  without  the  command 
or  authority  by  the  government,  and  such  act  is  afterv/ards 
adopted  and  ratified  by  the  government  under  and  for  which 
the  person  acts.^ 

In  the  case  of  People  v.  McLeod,*  however,  a  different 
doctrine  seems  to  have  been  held,  but  the  doctrines  there 
laid  down  cannot  be  regarded  as  either  sound  or  safe.  In 
that  case,  during  the  possession  of  Navy  Island,  in  the  Niag- 
ara River,  in  the  Avinter  of  1837  by  British  insurgents  (aided 
by  misguided  individuals  of  this  coinitry),  an  expedition  was 
fitted  out  under  the  direction  of  the  colonial  authorities  of 
Canada,  for  the  destruction  of  a  steamboat,  which  was  sus- 
pected to  have  been  used  for  conveying  warlike  stores  to  the 
Island.  The  boat  was  captured  while  moored  on  the  Ameri- 
can shore  of  the  river  and  burnt.  During  the  melee  an 
American  citizen  was  killed.  The  court  held  that  a  British 
subject,  who  was  charged  to  have  belonged  to  the  expedition, 
and  was  subsequently  arrested,  was  liable  to  be  proceeded 
against  individually  in  the  criminal  courts  of  the  state  of 
New  York.  This  decision  did  not  give  satisfaction  to  the 
profession,  and  was  severely  criticised,  and  justl3%  by  eminent 
jurists  ;  but  as  jNIcLeod  was  afterwards  acquitted  on  the  facts, 
nothing  more  was  heard  of  it.'^ 


1  Commonwealth  r.  Holland,  1  Diiv.  1  fJall.  C.  C.  HO.'],  5G8  (181:3)  ;  Vattel 
(Ky.)  182  (1804)  ;  Hammond  v.  State,  L.  of  Nat.  b.  2,  §  74. 

8  Coldw.  (Tenn.)  120(180(1);  Whart.  •*  1  Hill  (N.    Y.)  377   (1841);    s.c. 

Conf.  L.  §  909;  Wliart.  Cr.  L.   (7th  2;')  Wend.  (N.  Y.)  483;  oT  Am.  Dec, 

ed.)  §  702  qi  ;  3  Co.  Inst.  50;  1  Hale  ;528. 

P.  C.  4'->'j.       Coiii/xtre  United  States  r.  •>  In  this  case  the  United  States  and 

Greathouse,  2  Abb.  (U.  S.)  004  (180o).  Great    Britain    were    really    the    two 

2  The  Emnlous,  1  Gall.  C.  C.  ^}GP>  contesting;  parties.  The  latter  insisted 
(1813);  Whart.  Conf.  L.  §  911;  that  the  executive  department  of  this 
Whart.  Cr.  L.  (7th  ed.)  §  210 q'  ;  Par.  government  should  interpose,  and  re- 
Priv.   Int.  Nat.  L.  §  \P>9.  quire  the  judiciary  to  release  McLeod 

''See   Case   of    Tliorshaven,    Edw.  from  custody  of  the  New  York  courts. 

Adm.  108,  109  (1809)  ;  The  Emulous,  The  former  replied  that  tlie  executive 


SEC.  20.] 


KINDS    OF   HOMICIDE. 


21 


While  it  is  legal  to  kill  a  a  alien  enemy  in  tlie  heat  and 
exercise  of  war,  it  is  murder  to  kill  such  an  enemy  after  he 
lias  laid  down  his  arms.^ 

Sec.  20.  Excusable  homicide.  —  An  excusable  homicide 
is  one  where  a  person  in  doing  a  lawful  act,  without  inten- 
tion to  hurt  or  injure  any  one,  and  using  proper  precaution, 
by  accident  or  misadventure  kills  another.^  In  an  excusable 
liomicide  the  party  killing  is  not  altogether  free  from  blame, 
but  the  necessity  which  renders  it  excusable  may  be  said  to 
be  partly  induced  by  his  own  act.^  The  act  must  be  lawful ; 
for  if  the  act  be  unlawful,  the  homicide  will  amount  to  mur- 
der, or  manslaughter,  as  has  been  already  shown.     The  act 


(lid  not  possess  the  authority  to  inter- 
fere with  the  judicial  department,  and 
to  do  so  would  be  in  effect  to  deter- 
mine that  a  person  held  under  indict- 
ment in  due  form,  found  by  a  legally 
constituted  grand  jury,  was  guilty  of 
no  offence  under  our  laws.  Upon  this 
question  we  apprehend  that  there  can 
be  little  doubt  of  the  correctness  of 
the  position  taken  by  the  government 
of  the  United  States.  The  guilt  or 
innocence  of  an  accused  is  essentially 
a  judicial  question.  This  ordinarily 
would  be  doubted  by  no  one.  In 
the  above  oase  it  was  insisted  that 
even  if  McLcod  had  participated  in 
the  burning  of  the  Caroline  and  the 
killing  of  Durfee,  he  did  so  acting 
under  the  command  of  his  sovereign, 
or  of  her  military  officers,  and  was 
therefore  not  answerable  to  the  judi- 
cial tribunals  of  the  nation  in  which 
these  acts  were  done.  If  this  were 
true,  it  constituted  nothing  but  matter 
of  evidence  showing  that  under  the 
indictment  against  him  he  ought  to 
be  acquitted.  In  response  to  this  evi- 
dence it  was  surely  competent  for  the 
prosecution  to  offer  other  evidence,  if 
such  it  could  produce,  to  prove  that 
the  accused  did  not  act  under  the 
directions  of  any  sovereign  or  other 
power,  but  committed  the  acts  from 
mere  wantonness  and  malice.  In  this 
view  of  the  case,  Great  Britain  never 
coincided,     and     the     conviction     of 


McLeod  would  doubtless  have  been 
followed  by  an  immediate  declaration 
of  war  against  the  United  States.  See 
note  to  People  v.  McLeod,  37  Am. 
Dec.  364. 

The  refusal  of  the  local  authorities 
to  discharge  McLeod  without  a  trial 
jeopardized  the  foreign  relations  of 
the  federal  government,  and  to  pre- 
vent a  recurrence  of  transactions  of 
this  nature,  the  act  of  August  29, 
1842  (U.  S.  Stats,  at  Large,  vol.  5, 
p.  509)  was  passed  to  bring  such  cases 
under  the  cognizance  of  the  United 
States  judges  at  the  inception  of  the 
proceedings. 

Those  who  are  interested  in  the 
full  history  of  this  subject  can  con- 
sult Von  Hoist's  Constitutional  His- 
tory of  the  LTnited  States  ;  Wheaton's 
International  Law  (Lawrence's  edi- 
tion), 189;  /(/.  Dana's  edition,  §  293; 
3  PhiUim.  Int.  L.  50-54;  Halleck  Int. 
L.  333,  §§  19-23 ;  Webster's  Works, 
vol.  2,  p.  19;  vol.  5,  pp.  116,  120,  125, 
1.33;  vol.  6,  pp.  247-270;  Id.  Diplo- 
matic Papers,  120-140;  and  Judge 
Talmage's  Review  of  the  opinion  of 
Judge  Cowcn,  published  in  26  Wend. 
G63. 

1  State  V.  Gut,  13  Min.  341  (1808) ; 
Vattel  L.  of  Nat.  b.  3,  §  149. 

2  Desty's  Cr.  L.  §.  125. 

3  Roscoe's  Cr.  Ev.  634 ;  Harris'  Cr. 
L.  158;  1  Russ.  on  Cr.  (5th  Eng.  ed.) 
844 ;  1  East  P.  C,  c.  5,  §  36,  p.  261. 


22  HOMICIDE.  [chap.  II. 

resultino-  in  the  killing  must  not  be  done  with  intention  of 
inflicting  great  bodily  harm ;  for  then  the  legality  of  the  act, 
considered  abstractedly,  would  be  no  more  than  a  mere  cloak, 
or  pretence,  and  consequently  would  avail  nothing.^ 

Excusable  homicide  is  divided  into  two  classes :  (1)  homi- 
cide in  self-defence,  and  (2)  homicide  by  accident  or  misad- 
venture. 

Sec.  21.  Same — Distinction  between  justifiable  and 
excusable  Lomicicle.  —  Harris  says-  that  there  is  little  if 
any  ground  for  the  distinction  between  justifiable  and  excusa- 
ble homicide.  Perhaps  there  may  be  something  in  tliis,  that 
in  the  first  case  the  killer  is  engaged  in  an  act  which  the  law 
enjoins  or  allows  positively,  while  in  the  latter  he  is  about 
something  which  the  law  negatively  does  not  prohibit.  The 
reason  usually  given  is  that  in  both  the  forms  of  excusable 
homicide  there  may  be  some  degree  of  blame  attributed  in 
the  first  case,  i.e.  self-defence,  inasmuch  as  in  quarrels  both 
parties  are  to  some  extent  in  fault ;  the  second,  i.e.  accident, 
the  party  may  not  have  used  sufficient  caution.  But  to  visit 
the  act  under  all  circumstances  with  a  punishment  due  to 
what  may  have  happened  is  obviously  unjust.  In  neither 
case  is  there  any  malice,  which  is  always  an  essential  of  a 
crime.  "  In  former  times  a  very  marked  distinction  was  made 
in  the  two  kinds  of  homicide.  That  styled  '  excusable '  did 
not  imply  that  the  party  was  altogether  excused ;  so  much  so 
that  Coke  says  that  the  penalty  is  death.^  But  the  earliest 
information  which  the  records  contain  specially  shows  that  the 
defendant  was  entitled  to  a  complete  pardon  on  the  restitu- 
tion of  his  cause ;  but  he  had  to  pay  a  certain  sum  of  money 
to  procure  its  award.  Formerly  in  this  case  it  was  the  practice 
for  the  jury  to  find  the  fact  specially,  and  upon  certifying  the 
record  into  cliancery,  a  pardon  issued,  of  course,  under  the 
statute  of  Gloucester,  ch.  9,  and  the  forfeiture  w.xs  thereby 
saved.  But  latterly  it  was  usual  for  the  jury  to  find  the 
prisoner  not  guilty."*  Under  the  present  English  statute^  it 
is  provided  that  "  no  punishment  or  forfeiture  shiill  be  incurred 

1  1  Euss.  on  Cr.  (^th  Eng.  ed.)  844.  *  1  East  P.  C.  220. 

2  Harris'  Cr.  L.  158.  5  24  &  25  Vict.  c.  100,  §  7. 
8  2  Co.  Inst.  148,  315. 


SEC.  22.]  KINDS   OF   HOMICIDE.  23 

by  any  person  who  shall  kill  another  by  misfortune  or  in  his 
own  defence,  or  any  other  manner  without  felony."  ^ 

Sec.  22.  Homicide  in  self-defence.  —  Homicide  in  self- 
defence  is  a  sort  of  homicide  committed  se  et  sua  defendendo, 
in  defence  of  a  man's  person  or  property,  upon  some  sudden 
affray,  said  by  the  law  to  be  in  some  measure  blamable  and 
bearably  excusable.^ 

But  to  bring  the  killing  within  this  excuse,  the  accused 
must  show  that  he  endeavored  to  avoid  any  further  struggle, 
and  retreated  as  far  as  he  could,  until  no  possible,  or  at  least 
probable,  means  of  escaping  remained ;  that  then,  and  not  until 
then,  he  killed  the  other  in  order  to  escape  destruction  or 
great  bodily  harm.  It  matters  not  that  the  defendant  gave 
the  first  blow,  if  he  has  terminated  his  connection  with  the 
affray  by  declining  further  struggle  before  the  mortal  wound 
is  given.  Of  course  the  defence  must  be  made  by  the  person 
assaulted  while  the  danger  is  imminent ;  for  if  the  struggle 
is  over,  or  the  other  is  running  away,  this  is  revenge  and  not 
self-defence ;  nor  will  a  retreat  of  the  nature  indicated  avail 
if  the  blow  is  the  result  of  a  concerted  design ;  as  in  the  case 
of  a  duel,  where  the  two  parties  have  agreed  to  meet  each 
other,  and  one,  having  retreated  as  far  as  he  can,  kills  the 
other  in  protection  of  himself.  Nor  will  it  avail  if  there  has 
been  a  blow  from  malice  p)-epense,  and  the  striker  has  re- 
treated and  then  killed  the  other  in  his  own  defence.^ 

It  has  been  said  that  the  rule  is  well  settled,  that  the  killing 
of  one  who  is  an  assailant  must  be  under  a  reasonable  appre- 
hension of  loss  of  life  or  great  bodily  harm ;  and  the  danger 
must  appear  so  imminent  at  the  moment  of  the  assault  as  to 
present  no  alternative  of  escaping  its  consequences,  but  by 
resistance.  Then  the  killing  may  be  excusable,  even  if  it 
turn  out  afterward  that  there  was  no  actual  danger.* 

It  is  thought,  however,  that  the  guilt  of  the  accused  must 
in  a  measure  at  least  depend  on  the  circumstances  as  they 
appeared  to  the  party- at  the  time.'^ 

1  See  Roscoe's  Cr.  Ev.  634.  St.   205    (1861)  ;    s.c.    80   Am.   Dec. 

2  1  Russ.  on  Cr.  (5th  Eng.  ed.)  844 ;     'ISl. 

Harris'  Cr.  L.  159;  Fost.  273.  ^  Rpp..  v.  Thurborn,  1  Den.  C.  C. 

3  Harris'  Cr.  L.  159.  .387  (1849).     For  a 'full  discussion  of 
*  Logue  V.  Commonwealth,  38  Pa.     the  question  of  self-defence  as  a  justi- 


24  HOMICIDE.  [chap.  II. 

Sec.  23.  Homicide  by  misadventure.  —  Homicide  by  mis- 
adventure is  where  a  man,  doing  a  lawful  act  without  an 
intention  of  bodily  harm,  and  after  using  proper  precautions 
to  prevent  danger  or  injury,  unintentionally  happens  to  kill 
another  person.^  The  act  must  be  lawful ;  if  it  be  unlawful 
the  homicide  will  amount  to  murder  or  manslaughter ;  ^  and 
it  must  not  be  done  with  intention  of  great  bodily  harm ;  for 
if  it  is,  then  the  legality  of  the  act  considered  abstractly 
would  ])e  no  more  than  a  mere  cloak  or  pretence,  and  conse- 
quently would  avail  nothing.  The  act  must  also  be  done  in 
the  proper  manner  and  with  due  caution  to  prevent  danger.^ 

Sec.  24.  Same  —  The  act  must  be  lawful  —  Punishment 
of  children.  —  The  act  upon  which  the  death  ensues  must  be 
lawful  in  itself;  for  if  it  be  malum  in  se,  the  case  w^ill  amount 
to  felony,  either  murder  or  manslaughter,  according  to  the 
circumstances.  If  it  be  merely  malmn  prohibitum,  that  will 
not  vary  the  degree  of  the  offence.  The  usual  examples 
under  this  head  are :  (1)  Where  death  ensues  from  innocent 
recreations;  (2)  from  moderate  and  lawful  correction  inforo 
domestico  ;  and  (3)  from  acts  lawful  or  indifferent  in  them- 
selves, done  with  proper  and  ordinary  caution.  Homicide  by 
chance-medley  is  strictly  where  death  ensues  from  a  combat 
between  the  parties  upon  a  sudden  quarrel ;  but  it  is  fre- 
quently confounded  with  misadventure  or  accident.'^ 

To  bring  the  slaying  within  the  protection  of  the  excuse, 
the  act  al)out  which  the  slayer  is  engaged  must  be  a  lawful 
one.  For  if  the  slaying  happen  in  the  performance  of  an 
illegal  act,  it  is  manslaughter,  at  least,  and  murder  if  such 
act  is  felony.^  It  must  also  be  done  in  a  proper  manner. 
Thus,  it  is  a  lawful  act  for  a  parent  to  chastise  his  child,  and, 
therefore,  if  the  parent  happen  to  occasion  the  death  of  the 
child,  where  the  punishment  is  moderate,  the  parent  will  be 

lication  for  a  liomicido,  sec  post,  §  lOG  -  1  Kuss.  on  Or.  (5th  Eng.  ed.)  751), 

et  seq.  812. 

1  State   V.    Benliam,  23    Iowa,  154  ^  1  Russ.  on  Cr.  (5tli  En<r.  ed.)  844  ; 

(18G7)  ;  1  Iluss.  on  Cr.  (5th  Eng.  cd.)  1  East  V.  C,  c.  5,  §§  80,  261. 

844  ;  Koscoe's  Cr.  Ev.  (9tli  Enp.  ed.)  •*  1  East  V.  C.  221 ;  Roscoe's  Cr.  Ev. 

(\U;    Harris'    Cr.    L.    IGO;    1    Hawk.  634. 

V.  C,  c.  20,  §  1  ;    1  East  P.  C,  c.  5,  ^  j^px  v.  Hodgson,  1  Leach  C.  C.  6 

§  8,  p.  221 ;  /"(/.  §  3G,  P.  C.  2G0 ;  Post.  (1730). 
258. 


SEC.  25.]  KINDS   OF    HOMICIDE.  25 

innocent,  as  per  infortunium.  But  if  the  correction  exceeds 
the  hounds  of  moderation,  either  in  the  manner,  the  instru- 
ment, or  the  quantity  of  the  punishment,  and  death  ensues,  it 
is  manslaughter,  at  the  least,  and  in  some  cases  murder.  Thus 
it  will,  as  a  rule,  be  murder  if  the  instrument  used  is  one 
likely  to  cause  death ;  manslaughter  if  the  instrument  is  not 
of  such  a  character,  though  an  improper  one.  The  act  must 
also  be  done  with  due  caution  to  prevent  danger,  and  there- 
fore with  more  caution  by  those  using  dangerous  instruments 
or  articles.  Due  caution  is  such  as  to  make  it  improbable 
that  any  danger  or  injury  should  arise  from  the  act  to  others. 
Thus  throwing  stones  from  a  house,  whereby  the  death  of 
some  one  is  caused,  may  be  murder,  manslaughter,  or  homi- 
cide by  misadventure  ;  murder,  if  the  thrower  knew  that  peo- 
ple were  passing,  and  gave  no  notice  ;  manslaughter,  if  a  time 
when  it  was  not  likely  that  any  people  were  passing ;  excusa- 
ble homicide,  if  in  a  retired  place  where  persons  were  not  in 
the  habit  of  passing  or  likely  to  pass.^  It  has  been  said  that 
to  be  criminal  the  negligence  must  be  so  gross  as  to  be  reck- 
less,2  but  it  is  impossible  to  define  culpable  or  criminal  negli- 
gence.^ 

Sec.   25.     Same  —  Following    ordinary    occupations.  — 

Thus  where  a  person  driving  a  car  or  other  carriage  happens 
to  drive  over  another  and  kill  him,  if  the  accident  happened 
in  such  a  manner  that  no  want  of  due  care  could  be  imputed 
to  the  driver,  it  will  be  accidental  deatli  and  the  driver  will 
be  excused ;  *  and  it  has  been  said  that  where  a  person  was 
riding  a  horse  and  the  horse  being  whipped  by  some  other 
person  springs  out  of  the  road  and  runs  over  a  child  and  kills 
it,  this  will  be  a  misadventure  in  the  rider,  but  manslaughter 
in  the  person  who  whipped  the  horse.^ 

In  the  case  of  Rex  zf.  Hull  ^  it  was  held  that  if  a  person 
who  is  employed  on  a  building  thirty  feet  from  the  high- 
way gives  warning  to  passers-by   by  calling  out  to  "  stand 

1  Fost.  262.  Tracy,    32 ;    1  East    P.  C,  c.  5,  §  3, 

2  Reg.    V.   Noakes,  4  F.  &  F.  921     p.  263. 

(1866).  s  1  Russ.  on  Cr.  C5th  Eng.  ed.)  844 ; 

3  Harris'  Cr.  L.  160,  161.  1  Hawks  F.  C,  c.  29,  §  3. 

*  1  Russ.  on  Cr.  (5th  Eng.  ed.)  844.  «  Kelynge  40  ;  s.c.  1  Leach  C.  C.  50 

See   Fost.  263;    1    Hale    P.    C.  476;     (1664). 
O.  B.  Sess.  before  Mich.  T.  1704,  M.  S. 


26  HOMICIDE.  [chap.  II. 

clear,"  then  throws  down  a  piece  of  timber,  and  another  is 
killed  by  the  timber,  it  is  misadventure  merely.  And  it  is 
excusable  homicide  by  misadventm-e  when  death  accidentally 
happens  to  the  person  killed  while  engaged  in  lawful  sports, 
such  as  playing  at  cudgels,  at  foils,  or  wrestling  by  consent.^ 
Russell  says  that  "■  A  different  doctrine,  indeed,  appears  to 
have  been  laid  down  by  a  very  learned  judge ";2  but  the 
grounds  of  that  doctrine  have  been  ably  combated  by  Mr. 
Foster,  who  gives  this  good  reason  for  considering  such  sports 
as  lawful,  that  bodily  harm  is  not  the  motive  on  either  side.^ 
And  certainl}^  though  it  cannot  be  said  that  they  are  alto- 
gether free  from  danger,  yet  they  are  very  rarely  attended 
with  fatal  consequences,  and  each  party  has  friendly  warning 
to  be  on  his  guard.  Proper  caution  and  fair  play  should, 
however,  be  observed,  and  though  the  weapons  used  be  not 
of  a  deadly  nature,  yet  if  they  may  breed  danger  there  should 
be  due  warning  given,  that  each  party  may  start  upon  equal 
terms.  For,  if  two  be  engaged  to  play  at  cudgels,  and  the  one 
make  a  blow  at  the  other  likely  to  hurt,  before  he  is  upon 
his  guard  and  without  warning,  from  whence  death  ensues, 
the  want  of  due  and  friendly  caution  will  make  his  act  amount 
to  manslaughter,  but  not  murder,  the  intent  not  being  mali- 
cious.* 

Sec.  26.  Same  —  Adniiiiisteringr  medicine.  —  It  has  been 
said  that  where  a  physician  or  surge_pn,  even  though  he  be 
not  a  licensed  one,^  acting  with  due  care  and  skill,  gives  his 
patient  a  potion  or  plaster  intending  it  to  do  him  good,  and 
contrary  to  the  expectation  of  such  physician  or  surgeon  it 
kills  him,  this  is  neither  murder  nor  manslaughter,  but  a  mere 
misadventure.^ 

A  physician  is  liable  to  a  civil  action  for  damages  for  want 
of  reasonable  care  and  skill ;  ^  and  it'seems  that  where  death 

1  Fost.  259,  2(;0 ;  1  East  P.  C,  c.  5,  cock's   L.   Med.    Prof.   Append.  227 , 

§  41,  p.  208 ;  1  Russ.  on  Cr.  (5tli  En^.  1  Lew.  172  ;  4  Car.  &  P.  407,  note  a. 

ed.)    811);     Pennsylvania     v.    Lewis,  ^  i  Russ.  on  Cr.  (otli  Eng.  ed.)  664; 

Addis.   (Pa.)   270  "(1790).  4  Bl.  Comm.  197;  1  Hale  P.  C.  429; 

•^  1  Hale  P.  C.  472.  Reg.   v.  McLeod,  12   Cox   C.  C.  534 

3  Fost.  260.  (1872).     See  post,  ch.  VIL 

*  1  Ea.st  P.  C,  c.  5,  §  41,  p.  269.  "  Hallam    i-.    Means,    82    111.   379 

^  1  Hale,  429.     Compare  4  Co.  Inst.  (1876)  ;    Gramm    v.    Boener,    56  Ind. 

251;  Re.x  v.  Simpson,  Lan.  1829;  Wil-  497   (1877);  Piper  t-.  Menifee,  12  B. 


SEC.  27.]  KINDS   OF   HOMICIDE.  27 

is  inevitable  unless  relief  can  be  bad  by  performing  an  opera- 
tion wbere  tbe  prospects  of  success  are  sligbt,  if  he  perform 
such  operation  and  death  ensues  it  ^A•ill  be  regarded  simply  as 
a  misadventure  ;^  so  also  where  the  alternative  is  the  sacrifice 
of  the  mother,  and  the  life  of  the  child  is  taken ;  or  vi^here  the 
safety  of  a  city  requires  the  destruction  of  a  house  and  one 
of  the  inmates  is  thereby  killed ;  ^  even  though  acts  be  done 
in  gross  ignorance.^ 

Sec.  27.  Same  —  Homicide  on  correction.  —  Parents, 
masters,  and  other  persons  having  authority  in  foro  domestieo 
may  give  reasonable  correction  to  those  under  their  care,  and 
if  death  ensues  without  their  fault  it  will  be  no  more  tlian 
accidental  death ;  ^  and  where  the  correction  is  reasonable,  if 
by  the  struggling  of  the  party  corrected,  or  by  some  other 
misfortune,  death  ensues,  the  killing  will  be  only  misadven- 
ture.^ 

But  if  the  correction  exceed  the  bounds  of  due  modera- 
tion, either  in  the  measure  of  if,  or  in  the  instrument  made 
use  of  for  that  purpose,  the  death  ensuing  will  be  either  mur- 
der or  manslaughter,  according  to  the  circumstances  of  the 
case.  Where  the  act  is  done  with  a  dangerous  weapon, 
improper  for  correction,  and  likely  (the  age  and  strength  of 
the  party  being  duly  considered)  to  kill  or  maim ;  such  as  an 
iron  bar,  a  sword,  a  pestle,  or  great  staff ;  or  where  the  party 
is  kicked  to  the  ground,  his  belly  stamped  upon,  and  so 
killed,  it  will  be  murder.^     Thus,  where   a  master  had  em- 

Mon.  (Ky.)  465  (1851)  ;    Simonds  r.  Eex  ;•.  Williamson,  3  Car.  &  P.  6-35 

Henry,  31»  Me.  155  (1855);  Hyatt  v.  (1829)  ;s.c.  14  Eng.  C.  L.  755;  Webb's 

Ailanis,  10  .Mich.  180  (1867)  ;  Leigh-  Case,  2  Lew.  C.  C.  196  (18-34)  ;  Kex  v. 

ton  V.  Sargent,  31  N.  H.  119  (1855)  ;  Simpson,  4  Car.  &  P.  407  (1829)  note; 

Hathorn    v.    Richmond,    48   Vt.    557  s.c.  19  Eng.  C.  L.  576 ;  Keg.  i\  White- 

(1876).  head,  3  Car.  &  K.  202  (1848)  ;  Peg.  v. 

iDesty  Cr.  L.  §  125  a.  Spilling,   2   Moo.    &   R.    107    (18.38); 

2  1  Whart.  Cr.   L.   (8th  ed.)   §§  95,  Reg.  v.  Crook,  1  Post.  &  F.  521  (1859)  ; 

96;  Rex  r.  Van  Butchell,  3  Car.  &  P.  Rex   v.  Long,  4   Car.   &  P.  423,  440 

629  (1829)  ;    s.c.   14    Eng.  C.  L.  752.  (1831)  ;  s.c.  19  Eng.  C.  L.  584,  592. 

Compare  Reg.  v.  Wliitehead,  3  Car.  &  *  1  Russ.  on  Cr.  (5th  Eng.  ed.)  773 

K.  202  (1848).  (1884). 

^  Commonwealth   v.   Thompson,   6  ^1  Russ.  on  Cr.  844;  1  Hale  P.  C. 

Mass.   134    (1809);    Rice  v.   State,   8  454,473,474;  4  BL.Comm.  182. 

Mo.  .5(;i   (1844).     See  MeCandless  v.  e  Rex   v.   Keite,   1  Ld.  Raym.   144 

McWha,  22  Pa.  St.  261  (18-53);  Rex  (1698);    1    Hale    P.    C.    453,  473;    1 

V.  Senior,   1  Moo.  C.  C.  346  (1832) ;  Hawk.  P.  C,  c.  29,  §  5. 


28  HOMICIDE.  [chap.  II. 

ployed  his  apprentice  to  do  some  work  in  his  absence;  and 
on  his  return  found  it  had  been  neglected,  and  thereupon 
threatened  to  send  the  apprentice  to  Bridewell,  to  which  the 
apprentice  replied,  "  I  may  as  well  work  there  as  with  such  a 
master " ;  upon  which  the  master  struck  the  apprentice  on 
the  head  with  a  bar  of  iron  which  he  had  in  his  hand,  and  the 
apprentice  died  of  the  blow;  it  was  held  murder;  for  if  a 
father,  master,  or  schoolmaster,  correct  his  child,  servant,  or 
scholar,  it  must  be  with  such  things  as  are  fit  for  correction, 
and  not  with  such  instruments  as  will  probably  kill  them ; 
otherwise,  under  pretence  of  correction,  a  parent  might  kill 
his  child.  A  bar  of  iron  is  not  a  proper  instrument  of  cor- 
rection.i 

Sec.  28.  Felonious  homicide. —  Felonious  homicide  is  the 
killing  of  a  human  creature,  of  any  age  or  sex,  without  justi- 
fication or  excuse.^  Felonious  homicide  has  been  otherwise 
defined  as  the  unlawful  taking  by  one  human  being  of  the 
life  of  another  in  such  a  manner  that  he  dies  within  a  year 
and  a  day  from  the  time  of  the  giving  of  the  mortal  wound.^ 
Desty  defines  felonious  homicide  as  one  caused  by  an  act 
done  with  the  intention  to  cause  death  or  bodily  harm,  and 
when  such  act  is  neither  excusable  nor  justifiable  ;  or,  when 
death  is  caused  by  an  omission  —  amounting  to  culpable 
negligence  —  to  discharge  a  duty  tending  to  the  preservation 
of  life,  whether  accompanied  or  not  by  an  intention  to  cause 
death  or  bodily  harm ;  or  when  death  is  caused  accidentally 
by  an  unlawful  act.* 

If  the  homicide  is  committed  with  malice,  either  express 
or  implied,  it  is  murder ;  if  without  malice,  it  is  manslaugh- 
ter. In  either  case  the  injury  must  continue  to  affect  the 
body  of  the  victim  until  death.  If  death  then  ensues  from 
another  cause,  as  from  a  disease,  even  though  that  disease 
was  brought  on  or  superinduced  by  the  unlawful  act  of  the 
accused,  no  nlui'der  or  manslausfhter  has  been  committed.^ 


^  Tlcx  I'.  Grey,  Kcl.  (M;  Fost.  262.  niiicli  as  it  does  not  include  suicide. 

2  4  m.  Coniin.  188.  See  jmsl,  §§  47-00. 

•■'  Commnnwealtii    r.    Macloon,   101  •*  Desty  Cr.  L.  §  127. 

Mass.  f)  (18(>0).     Tlie  ohjcction  to  this  ^  Cornmnnwcaltii    v.  Macloon,    101 

definition  is  that  it  is  defective  in  as  Mass.  G,  8  (1809). 


SEC.  29.]  KINDS   OF    HOMICIDE.  29 

Sec.  29.  Same  —  Intent  as  an  element.  —  The  intent 
with  which  the  unlawful  act  is  committed  is  the  controlling 
element.  An  intent  to  kill  is  an  essential  element  in  murder, 
except  in  those  cases  where  the  accused  is  engaged  in  perpe-  • 
trating  a  felony  at  the  time  when  the  injury  is  inflicted.^ 
Simply  an  intent  to  inflict  serious  bodily  injury,  however,  has 
been  held  to  be  sufficient.^  Lord  Manstield  says^  that  the 
ancient  writers,  in  treating  of  felonious  homicide,  considered 
the  felonious  intention  in  the  same  light  in  point  of  guilt  as 
homicide  itself.  Voluntas  reputahatur  prof  acta  ;  a  rule  which 
has  long  been  laid  aside  as  too  rigorous  in  the  case  of  com- 
mon persons,  though  retained  in  the  English  statute  of  trea- 
sons ;  *  but  when  the  rule  prevailed,  it  was  necessary  that  the 
intention  should  be  manifested  by  plain  facts,  not  by  bare 
words  of  any  kind.  Hcec  voluntas  non  intellecta  fuit  de 
voluntate  nudis  verbis  aiit  scriptis,  propalata,  sed  mundo  mani- 
festato  fait  p>er  apertuni  factum.^ 

Every  one  is  presumed  to  intend  that  which  he  voluntarily 
does,^  and  the  law  infers  that  every  one  intends  the  neces- 
sary consequences  of  his  acts;'  hence,  if  one  wills  to  effect  a 
purpose,  either  legal  or  illegal,  he  is  to  be  regarded  as  caus- 
ing the  resulting  illegal  act.^ 

Where  the  leading  motive  with  which  an  act  is  done  is 
illegal  or  malicious,  it  adds  to  the  act  its  essential  evil  intent.^ 
Generally  the  legal  intent  may  be  inferred  from  the  commis- 
sion of  the  act  itself. i*^     Thus,  if  a  man,  knowingly,  does  an 

1  People  V.  Austin,  1  Park.  Cr.  Cas.  2  Car.  &  K.  368  (1847)  ;  s.c.  Gl  Eng. 

(N.  Y.)  154  (1847).  C.  L.  367. 

■2  See  Commonwealth  v.   Green,    1  ^  State   v.    Moore,    12    N.    II.    42 

Ashm.  (Pa.)  289  (1826) ;  Summers  v.  (1841)  ;  Reg.  v.  Bowen,  Car.  &  M.  149 

State,  5  Tex.  App.  365  (1879)  ;  Post.  (1841) ;  s.c.  41  Eng.  C.  L.  86;  Reg.  v. 

259 ;  1  Hale  P.  C.  491.  Geach,  9  Car.  &  P.  499  (1840)  ;  s.c.  38 

3  Rex  V.  Scofield,  Cald.  897  (1780).  Eng.  C.  L.  294;   Rex  v.  Batt,  6  Car. 

*  25  Ed.  3,  St.  5,  c.  2.  &  P.  329  (1834)  ;  s.c.  25  Eng.  C.  L. 

5  3  Co.  Inst.  5 ;  Post.  193.  458 ;    Rex  v.  Davis,  1  Car.  &  P.  306 

6  Hill  I'.  People,  1  Colo.  436  (1872).  (1824)  ;  s.c.  12  Eng.  C.  L.  183;  Rex 
•?  Commonwealth  v.  Green,  1  Ashm.  v.  Gillow,  1  Lew.  C.  C.  57  (1825);  Rex 

(Pa.)   289    (1826);    Rex  v.   Dixon,  3  r.  Cox,  Russ.  &  R.  C.  C.  362  (1818). 

Maul.  &  S.  15  (1814);  Post.  259.  See    Commonwealth    v.    McPike,    57 

8  United  States  v.  Jones,  3  Wash.  Mass.  (3  Cush.)   181    (1849);  People 

C.  C.  209    (1813);    Reg.   ?•.    Howell,  e-.  Curling,  IJohns.  (N.  Y.)  320  (1806). 

9  Car.  &  P.  437  (1839)  ;  Rex  v.  Whit-  ^^  Bain  v.  State,  61  Ala.  76  (1878) 

home,  3  Car.  &  P.  394  (1828);    s.c.  Commander  r.  State,  60  Ala.  1  (1877) 

14  Eng.  C.  L.  627;    Reg.  v.  Haines,  Hadley  v.  State,  55  Ala.  31   (1876) 


30 


HOMICIDE. 


[chap.  II. 


act  unlawful  in  itself,  and  it  produces  tlie  harm  intended,  the 
law  infers  the  criminal  intent ;  ^  because  where  a  xjerson  is  of 
sound  mind  2  he  is  presumed  to  intend  the  natural  conse- 
quences of  his  act  as  well  as  the  proximate  consequences,^ 


Woodward  v.  State,  54  Ga.  100  (1875)  ; 
s.c.  1  Am.  Cr.  lit- p.  3(3(5 ;  Hood  v. 
State,  56  Iml.  2(53  (1877)  ;  Cluck  v. 
State,  40  Iiul.  203  (1872)  ;  Common- 
wealtli  I'.  Stout,  7  B.  Mon.  (Ky.)  247 
(1847);  Cominoiiwealtli  u.  York,  50 
Mass.  (9  Mete.)  103  (1845)  ;  State  v. 
Underwood,  57  Mo.  40  (1874)  ;  s.c. 
1  Am.  Cr.  Rep.  251;  lleg.  v.  Regan,  4 
Cox  C.  C.  335  (1850).  See  Broom 
Com.  876. 

1  Bain  v.  State,  01  Ala.  76  (1878) ; 
Stein  r.  State,  37  Ala.  123  (1861)  ; 
People  V.  Trim,  39  Cal.  75  (1870)  ; 
Vaiidermark  r.  People,  47  111.  122 
(1808)  ;  Hood  v.  State,  56  Ind.  263 
(1877)  ;  Cluck  v.  State,  "40  Ind.  203 
(1872);  Walker  v.  State,  8  Ind.  290 
(1850)  ;  State  v.  Goodenow,  05  Me.  30 
(1870)  ;  s.c.  1  Am.  Cr.  Rep.  42;  State 
V.  Smith,  32  Me.  300  (1851)  ;  Com- 
monwealth V.  McLaughlin,  87  Mass. 
(5  Allen)  507  (1802)  ;  Commonwealth 
V.  York,  50  Mass.  (9  Mete.)  103  (1845); 
Commonwealth  v.  Drew,  4  ^lass.  391 
(1808) ;  State  v.  Welch,  21  Minn.  27 
(1874);  Stokes  v.  People,  53  N.  Y. 
164  (1873);  People  v.  Herrick,  13 
Wend.  (N.  Y.)  87  (1834)  ;  State  v. 
Smith,  2  Strobh.  (S.  C.)  L.  77  (1847)  ; 
Ann  V.  State,  11  Humph.  (Tenn.)  159 
(18.J0);  Holly  V.  State,  10  Humpli. 
(Tenu.)  141  (1849)  ;  State  v.  Patter- 
son, 45  Vt.  308  (1873);  Felton  v. 
United  State.s,  96  U.  S.  (6  Otto)  699 
(1877);  bk.  24  L.  cd.  875;  United 
States  V.  Learned,  1  Abb.  (U.  S.)  483 
(1870);  Rc.\  V.  Robinson,  2  Leach 
C.  C.  749  (1790);  Rex  v.  Hunt,  3 
Barn.  &  Aid.  5()()  (1820)  ;  s.c.  5  Eng. 
C.  L.  327;  Rex  v.  Woodfall,  5  Burr. 
2661  (1771)  ;  3  Green  Ev.  §  730. 

2  Meredith  v.  State,  60  Ala.  441 
(1877);  Mitchum  v.  State,  11  Ga. 
015  (1852);  Hanrahan  v.  People,  91 
111.  143  (1878);  Hood  V.  State,  56 
Ind.  2f)3  (1877);  Cluck  v.  State.  40 
Ind.    203    (1872);    Walker   v.   State, 


8  Ind.  290  (1856);  State  v.  Goodenow,  05 
Me.  30  (1870)  ;  s.c.  1  Am.  Cr.  Rep.  42  ; 
Commonwealth  v.  Bonner,  50  Mass. 
(9  Mete.)  410  (1845);  Common- 
wealth V.  York,  50  Mass.  (9  Mete.)  93 
(1845)  ;  Commonwealth  v.  Snelling, 
32  Mass.  (15  Pick.)  337  (1834)  ;  Com- 
monwealtli  v.  Drew,  4  Mass.  391 
(1808)  ;  Woodsides  v.  State,  3  Miss. 
(2  How.)  656  (1837)  ;  State  v.  Cooper, 
13  N.  J.  L.  (1  J.  S.  Gr.)  361  (1833)  ; 
State  V.  Zellers,  7  N.  J.  L.  (2  Halst.) 
220  (1824)  ;  People  v.  Clark,  7  N.  Y. 
385  (1852)  ;  Miller  v.  People,  5  Barb. 
(N.  Y.)  203  (1849)  ;  People  v.  Cot- 
teral,  18  Johns.  (N.  Y.)  115  (1820)  ; 
People  V.  Kirby,  2  Park  Cr.  Cas. 
(N.  Y.)  28  (1823)  ;  People  v.  Herrick, 
13  Wend.  (X.  Y.)  87  (1834)  ;  State  r. 
Merrill,  2  Dev.  (N.  C.)  L.  209  (1829) ; 
State  V.  Mitchell,  5  Ired.  (X.  C.)  L. 
350  (1845)  ;  State  v.  Jarrot,  1  Ired. 
(N.  C.)  L.  70  (1840)  ;  Hill  v.  Com- 
monwealth, 2  Graft.  (Va.)  594  (1845)  ; 
Rex  V.  Jones,  2  Car.  &  P.  029  (1827)  ; 
s.c.  12  Eng.  C.  L.  773.  See  State  v. 
Gilman,  (59  Me.  103  (1879)  ;  Cathcart 
V.  Commonwealth,  37  Pa.  St.  108 
(1800)  ;  2  Greenl.  Ev.  §  13 ;  1  Greenl. 
Ev.  §  18  ;  Stark.  Ev.  738. 

3  Meredith  v.  State,  00  Ala.  441 
(1877)  ;  Commander  v.  State,  (50  Ala. 
1  (1877)  ;  Hadley  v.  State,  55  Ala.  31 
(1870)  ;  People  i-.  Honshell,  10  Cal. 
83  (1858) ;  State  v.  Stanton,  37  Conn. 
421  (1870)  ;  Clarke  v.  State,  35  Ga.  80 
(1800)  ;  Dickens  v.  State,  30  Ga.  383 
(18(50)  ;  Jones  v.  State,  29  Ga.  608 
(1800)  ;  Hood  r.  State,  50  Ind.  263 
(1877)  ;  Cliiek  r.  State,  40  Ind.  263 
(1872)  ;  Coleman  v.  People,  58  X.  Y. 
555  (1874)  ;  Weed  v.  People,  56  X.  Y. 
628  (1874)  ;  Copperman  v.  People,  56 
N.  Y.  591  (1874)  ;  Weyman  v.  People, 
6  T.  &  C.  (X.  Y.)  096  (1875)  ;  Hill  v. 
State,  5  Tex.  A  pp.  2  (1879);  Rex  u. 
Woodburnc,  10  How.  St.Tr.  54  (1722). 


SEC.  29.] 


KINDS   OF   HOaUCIDE. 


31 


and  where  the  act  intended  is  unlawful,  the  possible'  conse- 
quences also.i  Thus,  if  a  man,  out  of  malice,  attempts  to 
shoot  one  person  and  missing  him  kills  another,^  he  will  be 
guilty  of  murder  or  manslaughter  the  same  as  he  would  have 
hetn  liad  he  killed  the  man  intended.^  And  it  has  been  said 
that  if  one  shoots  Avith  intent  to  make  a  horse  throw  his 
rider,  and  kills  a  person  standing  near  by;*  or  if  one  in  a 
sudden  quarrel  kills  a  stranger,^  it  is  murder.  And  if  an 
illegal  act  produce  harm  not  intended,  the  perpetrator  will 
be  held  responsible  for  all  consequences;^  thus,  if  a  man 
shoots  at  a  person,  mistaking  his  identity,  and  wound 
another,  he  may  be  convicted  of  shooting  or  wounding  with 
intent  to  kill ;  ">  and  we  have  seen  above  that  if  he  kills  such 
third  person  it  is  murder. 

Intent  is  to  be  inferred  from  the  external  circumstances 
accompanying  the  crime  and  the  instrument  or  means  made 
use  of  in  the  commission  of  the  homicide,  and  the  sound 
mind  and  discretion  of  the  accused.^  Thus,  the  intent  to  kill 
a  person  will  be  inferred  from  the  homicide  itself,^  where  the 
killing  is  shown  to  have  been  done  by  the  use  of  a  deadly 
weapon.i*' 

1  Studstill  r.  State,  7  Ga.  2  (1849). 
-  People    V.    Keet'er,    18   Cal.   (JoQ 

(1801) ;  Commonwealth  v.  Webster, 
59  Mass.  (5  Cush.)  306  (1850)  ;  State 
V.  Smith,  2  Strobh.  (S.  C.)  L.  77  (1847); 
Rex  V.  Huggins,  2  Ld.  Raym.  1581 
(1730)  ;  Reg.  v.  Mawgridge,  Kelynge, 
119  (1065). 

2  GoUiher  v.  Commonwealth,  2  Duv. 
(Kj\)  163  (1865) ;  State  v.  Raymond, 
11  Nev.  98  (1876);  State  v.  Cooper, 
13  N.  J.  L.  (1  J.  S.  Gr.)  .381  (1833)  ; 
State  V.  Benton,  2  Dev.  &  B.  (N.  C.) 
L.  196  (1836)  ;  State  v.  Fulkerson,  1 
Phil.  (X.  C.)  L.  233  (1867);  AVare- 
ham  V.  State,  25  Ohio  St.  601  (1874)  ; 
Callahan  v.  State,  21  Ohio  St.  300 
(1871);  Anr/ell  v.  State,  36  Tex.  542 
(1872);  s.c.  1  Gr.  Cr.  Rep.  053;  Rex 
V.  Holt,  7  Car.  &  P.  519  (18.30)  ;  Rex 
V.  Plummer,  12  Mod.  627  (1702)  ;  Post. 
261 ;  1  Hale  P.  C.  379.  See  Aaron  v. 
State,  31  Ga.  167  (1860)  ;  Morris  v. 
Piatt,  .32  Conn.  75  (1864)  ;  State  v. 
Johnson,   7  Oreg.  210  (1879);   Brat- 


ton  I'.  State,  10  Humph.  (Tenn.)  103 
(1849)  ;  Reg.  v.  Lallement,  6  Cox  C  C. 
204  (18-53)  ;  Rex  v.  Conner,  7  Car.  & 
P.  438  (1836)  ;  s.c.  32  Eng.  C.  L.  695; 
Levitt's  Case,  Cro.  Car.  538  (1640)  ; 
Post.  262 ;  1  Hawk.  P.  C.  31,  §  44. 

*  State  V.  Smith,  2  Strobh.  (S.  C.) 
L.  77  (1847). 

^  United  States  v.  Travers,  2  Wheel. 
Cr.  Cas.  (N.  Y.)  508  (1814). 

6  Meredith  v.  State,  60  Ala.  441 
(1877)  ;  People  v.  Honshell,  10  Cal. 
83  (1858)  ;  State  v.  Stanton,  37  Conn. 
421  (1870). 

"  Studstill  r.  State,  7  Ga.  2  (1849); 
Ann  V.  State,  11  Humph.  (Tenn.)  159 
(1850);  State  r.  Turner,  Wright  (Ohio) 
20  (1831). 

8  Hill  V.  People,  1  Colo.  4-36  (1872)  ; 
Slattery  v.  People,  76  111.  218  (1875) ; 
Gatlin  v.  State,  5  Tex.  App.  531  (1879). 

9  State  V.  Lautenschlager,  22  ilinn. 
514  (1876). 

iJ  Hill  V.  People,  1  Colo.  436  (1872). 


32 


HOMICIDE. 


[chap.  II. 


While  it  is  true  that  the  intent  must  co-exist  with  and 
prompt  the  deed  in  order  to  render  the  party  culpable,^  yet 
such  intent  may  be  instantaneously  formed  prior  to  the 
commission  of  the  deed,  and  when  so  formed  the  crime  is 
murder.'-^ 


1  Clements  r.  State,  50  Ala.  117 
(1874). 

•^  Tf  ople  V.  Freel,  48  Cal.  430(1874)  ; 
Coinmoiiwealtli  v.  York,  GO  JIass.  (9 
Mete.)  m  (1845);  People  r.  Clark, 
7  N.  Y.  o85  (1852)  ;  O'Brien  v.  People, 
48  Barb.  (N.  Y.)  274  (18(57)  ;  Laner- 
gan  ;•.  People,  0  Park.  Cr.  Cas.  (N.  Y.) 
209  (18(i:3)  ;  s.c.  50  Barb.  (N.  Y.)  260; 
Walters  v.  People,  0  Park.  Cr.  Cas. 
(N.  Y.)  15  (1804)  ;  Lowenbcrg  v.  Peo- 


ple, 5  Park.  Cr.  Cas.  (N.  Y.)  414 
(1803)  ;  Shoemaker  v.  State,  12  Ohio, 
43  (1843);  Anthony  v.  State,  Mei.ss 
(Tenn.)  205  (1838).  Contra,  Donnel- 
la!i  V.  Commonwealth,  7  Bush  (Ky.) 
070  (1870)  ;  Wilson  v.  People,  4  Park. 
Cr.  Cas.  (N.  Y.)  619  (1859)  ;  Sullivan 
V.  People,  1  Park.  Cr.  Cas.  (X.  Y.)  347 
(1852);  People  v.  Johnson,  1  Park. 
Cr.  Cas.  291  (1851). 


CHAPTER   III. 

CRIlSaNAL    HOMICIDE. 

Sec.  30.  What  constitutes  criminal  homicide. 

Sec.  31.  Other  assaults  on  deceased — Effect. 

Sec.  32.  Infliction  of  mortal  wound. 

Sec.  33.  Death  accelerated  by  accused. 

Sec.  34.  Proper  medical  treatment. 

Sec.  35.  Same  —  Failure  to  procure  medical  aid. 

Sec.  36.  Same  • —  Erroneous  medical  treatment. 

Sec.  37.  Same  —  Death  from  subsequently  contracted  disease. 

Sec.  38.  Liability  for  killing  by  third  person  — Kioters. 

Sec.  39.  Death  by  repeated  acts. 

Sec.  40.  Death  caused  through  irresponsible  agent  —  Children  and  idiots. 

Sec.  41.  Same  —  Letting  loose  savage  animal. 

Sec.  42.  Same — Producing  conviction  by  perjury. 

Sec.  43.  Continuing  offences. 

Sec.  44.  Same  —  Indictment. 

Sec.  45.  Same  —  Jurisdiction. 

Sec.  46.  Wound  inflicted  on  high  seas. 

Sec.  30.  What  constitutes  criminal  homicide. — Criminal 
homicide  consists  in  the  unhiwful  taking  by  one  human  being 
of  tlie  life  of  another  by  any  wound  of  which  he  dies  within 
a  j-ear  and  a  day  from  the  time  of  the  giving  of  the  mortal 
wound.  If  committed  with  malice  expressed,  or  implied  by 
law,  it  is  murder;  if  without  malice,  it  is  manslaughter.  No 
})ersonal  injury,  however  grave,  which  does  not  destroy  life, 
will  constitute  either  of  these  crimes.  The  injury  must  con- 
tinue to  affect  the  body  of  the  victim  nntil  his  death.  If  it 
ceases  to  operate  and  death  ensues  from  another  cause, 
neither  murder  nor  manslaughter  has  been  committed;  but  if 
the  assault  is  with  a  gun  or  pistol,  and  the  bullet  ]"emains  in 
the  body  so  as  to  press  upon  or  disturb  the  vital  organs  and 
ultimately  produces  death ;  or  the  wound  given,  or  the  poison 
administered,  causes  a  decline  of  health  ending  in  death,  the 
injury  and  death  are  as  much  the  continuous  portion  and 
effect  of  the  unlawful  act  as  if  the  shot,  the  stab,  or  the 
3  33 


34  HOMICIDE.  [chap.  III. 

poison  had  proven  instantly  fatal.  The  unlawful  intent  with 
which  the  wound  is  inflicted  or  the  poison  administered 
attends  and  qualifies  the  act  until  its  final  result.  No  repen- 
tance or  change  of  purpose  after  inflicting  the  injury,  or  set- 
ting in  motion  the  force  by  means  of  which  it  is  inflicted,  will 
excuse  the  criminal.  If  his  unlawful  act  is  the  efficient  cause 
of  the  mortal  injury,  his  personal  presence  at  the  time  of  its 
beginning,  its  continuation,  or  its  result,  is  not  essential. 
Thus  a  person  may  be  guilty  of  homicide  by  shooting,  even  if 
he  stands  afar  off,  out  of  sight,  or  in  another  jurisdiction.^ 

If  a  man  knowingly  lets  loose  a  dangerous  beast,  which 
runs  any  distance  and  then  kills  a  man  ;  or  incites  a  madman 
or  a  child  not  of  years  of  discretion  to  commit  murder  in  his 
absence,  whereby  any  one  is  killed ;  '^  or  with  intent  to  mur- 
der, leaves  poison  with  another  person  to  be  administered  to 
a  third,  and  the  poison  is  administered  to  another  by  an  inno- 
cent agent,  and  causes  the  death  of  the  person  intended,  or 
any  other,  he  is  responsible  as  principal  to  the  same  extent 
as  if  personally  present  at  the  actual  killing.^ 

To  constitute  a  homicide,  however,  the  party  killed  must 
have  been  living  at  the  time  the  blow  was  struck  or  the 
potion  administered,*  and  the  death  must  be  imputed  to 
the  act  of  the  defendant,''  and  must  occur  within  a  year 
and  a  day  from  the  time  the  blow  was  struck  or  the  poison 
administered.^ 

It  is  not  essential  that  the  violence  inflicted  by  the  defend- 
ant should  be  the  sole  or  immediate  cause  of  the  death  ;'^  it  is 

1  Common wealtli  v.  Macloon,  101  «  People  v.  Kelly,  6  Cal.  210  (1850); 
Mass.  1,  7  (1809).  Sec  Peoples.  People  r.  Aro,  0  Cal.  207  (1850);  State 
Adams,  3  Den.  (X.  Y.)  100, 207  (1840)  ;  c.  MayfieUl,  GO  Mo.  125  (1877)  ;  State 
s.c.  1  N.  Y.  170,  179;  I  Hale  P.  C.  r.  Orrell,  1  Dev.  (N.  C.)  L.  139  (1820)  ; 
475.  Ivlmotulson    v.    State,    41    Tex.   490 

2  See  post,  §  41.  (1874)  ;  1  Arch.  C.  P.  751 ;  3  Co.  Inst. 

3  Reg.  V.  ]\iicliacl,  9  Car.  &  P.  350  53  ;  Hale  P.  C.  424.  Tlie  day  on  wliieli 
(1840);  s.c.38Eng.  C.  L.  213;  1  Hale  the  blow  is  struck,  or  the  injury  is 
1*.  C.  430,  431,  015,  017;  1  East  P.  C.  inflicted,  is  to  be  reckoned  as  the  first 
265.  day,   in    computing    the    time   within 

*  United  States  v.   Hewson,  7  Leg.  whicl)  the  death  must  occur.     People 

Rep.  301.  r.  Gill,   0  Cal.   037    (1850)  ;    1    Hale 

s  Commonwealth    v.    Costley,    118  P.  C.  420. 
Mass.  1   (1875);    Tabler  i;.   State,  34  "  State  r.  Matthews, -38  La.  An.  705 

Ohio  St.  1.37   (1877);    Rex  v.   Webb,  (1880);  State  v.  Smith,  10  Nev.  100 

2  Lew.  C.  C.  190  (18.34)  ;  Rex  v.  Tye,  (1875). 
Uuss.  &  Ky.  C.  C.  345  (1818). 


SEC.  31.]  CRIMINAL   HOMICIDE.  35 

sufficient  if  it  is  the  mediate  cause.^  And  if  a  person,  by  a 
wrongful  act,  accelerates  the  death  of  another,  which  would 
necessarily  have  soon  occurred  from  an  incurable  disease,  he 
is  guilty  of  honiicide,^  because  a  person  is  deemed  to  have 
committed  homicide,  although  his  act  is  not  the  immediate 
or  not  the  sole  cause  of  death,  in  those  cases  where  (1)  he 
inflicts  a  fatal  injury  on  another  which  necessitates  surgical  or 
medical  treatment  from  which  death  results ;  ^  (2)  inflicts  a 
fatal  injury  on  another  which  would  not  have  caused  death 
if  the  injured  person  had  submitted  to  proper  surgical  treat- 
ment, or  had  obeyed  his  attending  physician,  or  had  observed 
proper  precautions  as  to  his  mode  of  living ;  *  (3)  where,  by 
actual  violence,  a  person  causes  another  to  do  an  act  which 
causes  his  own  death,  such  act  being  a  mode  of  avoiding  such 
violence,  or  threats,,  which,  under  the  circumstances,  would 
appear  fatal  to  the  injured  person ;  ^  (4)  where,  by  wrongful 
act,  a  person  hastens  the  death  of  another  who  is  suffering 
under  any  disease  or  injury,  which,  apart  from  his  act,  would 
have  caused  death  ;  ^  and  (5)  where  his  act  or  omission  would 
not  have  caused  death  unless  accompanied  by  the  acts  or 
omissions  of  the  person  killed,  or  some  other  person.^ 

Sec.  31.  Other  assaults  on  deceased  —  Effect.  —  Where 
the  defendant  inflicts  a  fatal  blow,  he  cannot  escape  liability 
for  his  wrongful  act  from  the  fact  that  other  blows  were  subse- 
quently inflicted  by  other  persons  which  hastened  the  death.^ 
But  if  one  inflicts  a  mortal  wound,  and,  before  death  ensues, 

1  Stater.  Smiti),  10  Nev.  106(1875).  &  Keg.  v.  Pym,  1  Cox  C.  C.  339 
See  People  v.  Moan,  65  Cal.  532  (1884);     (1846). 

Williams   r.   State,  2  Tex.   App.  271  ^  See   State  v.  Morea,  2   Ala.  275 

(1877).  (1841);  People  v.  Moan,  65  Cal.  532 

2  State  V.  Morea,  2  Ala.  275  (1841) ;  (1884)  ;  People  v.  All  Fat,  48  Cal. 
People  r.  Moan,  05  Cal.  532  (1884).  61    (1874);    Kelley  v.  State,  53   Ind. 

3  See  McAllister  v.  State,  17  Ala.  311  (1876);  Rex  v.  Wehb,  1  Moo.  & 
4.34  (1850)  ;  Slate  v.  Corbett,  1  Jones  R.  405  (1834)  ;  1  Hale  P.  C.  428. 

(N.  C.)  L.  2()4  (1853)  ;  1   Hale  P.   C  '  See  Refj.  r.  Swinrlall,  2  Car.  &  K. 

418.  230  (1846);    s.c.  61   Eng.  C.  L.  229; 

4  Bowles  r.State, 58  Ala. 3.35ri877);  Rep.  v.  Longbottom,  3  Cox  C.  C.  439 
State  V.  Bantley,  44  Conn.  537  (1877);  (1849)  ;  s.c.  1  Russ.  on  Cr.  (5th  Eng. 
People  V.  Cook,  39  Midi.  236  (1878)  ;  efl.)  830;  Reg.  v.  Ledger,  2  Post.  &  F. 
State  r.  Landgraf,  95  Mo.  97  (1888);  857  (1862);  Reg.  v.  Fletcher  (Mss.) 
Williams  V.  State,  2  Tex.  App.  271  1  Russ.  on  Cr.  (5th  Eng.  ed.)  676 
(1877).  (1841). 

«  Tidwell  V.  State,  70  Ala.  33  (1881). 


36  HOMICIDE.  [chap.  III. 

another  kills  the  same  person  by  an  independent  act,  without 
concert  or  procurement  of  the  one  who  caused  his  first  wound, 
the  first  person  cannot  be  convicted  of  murder  or  manslaugh- 
ter, or  assault  with  intent  to  kill,  on  an  indictment  charging 
both  with  murder.i 

A  person  is  not  deemed  to  have  committed  homicide, 
although  his  conduct  may  have  caused  death,  (1)  where  the 
death  does  not  take  place  within  a  year  and  a  day  from  the 
time  the  injury  was  inflicted;^  (2)  where  the  death  is  caused 
by  the  act  of  a  third  person,  although  such  act  resulted  from 
or  grew  out  of  the  defendant's  conduct ;  '^  (3)  where  the  death 
is  caused  without  any  definite  intention  of  doing  fatal  injury 
to  the  person  killed,*  and  (4)  where  death  is  caused  by  false 
testimony  given  in  a  court  of  justice.^ 

« 
Sec.  32.    infliction  of  mortal  wound.  —  If  a  wound  was 

so  inflicted  as  to  render  the  inflicter  criminal,  and  death  fol- 
lows, he  is  amenable  for  homicide,  though  the  person  wounded 
would  have  died  from  other  causes,  or  from  the  wound  irre 
spective  of  such  other  cause,  provided  the  wound  really  con- 
tributed, mediately  or  immediately,  to  the  death.^  And  when 
wounds  have  been  inflicted  by  one  person  upon  another,  and 
the  latter  afterwards  dies,  it  is  not  indispensable  to  the  con- 
viction of  the  former  of  murder  or  manslaughter,  under  an 
indictment  based  upon  the  infliction  of  such  wounds,  that 
they  were  necessarily  fatal,  and  were  the  direct  cause  of  the 
death;  but  if  they  caused  the  death  indirectly,  through  a 
chain  of  natural  causes,  unchanged  by  human  action,  it  is 
sufficient  in  this  regard.'^ 


1  State  r.  Wood,  5.3  Vt.  500(1881).  M?ex   v.  Self,   1   Leach  C.  C.  187 

-  1  P:ast  P.  C.  343,344;   1  Kiiss.  on  (ITTC);    )*.c.    1    East  P.   C.  22(i,  227; 

Cr.  (5tli  Eng.  ed.)073;  4  Bl.  Comm.  1    Kiiss.   on   Cr.  (5th   Eng.   ed.)   (552; 

197;   1  Hawk.  P.  C.  31,  §  9.  Kex   r.   Squire,   1    Hnss.  on   Cr.    (5tii 

3  Thus  rioters  are  not   responsible  Eng.  ed.)  (153  (1700);    1    Hale  P.   C. 

for  a   homicide   committed   by   those  420. 

attenipting  to  suppress  tiie  riot.   .But-  ^  Rex    r.    McDaiiiel,    1!)   How.    St. 

leri-.  People,  125  III.  Oil  (1888);   s.c.  Tr.    806    (1755)    and    note    810-814; 

K  Am.   St.  Hep.  423;   1  L.  M.  A.  211  ;  Fost.  131. 

18  N.  E.  Hep.  338;  Commonwealtli  r.  "Williams   r.   State,  2   Tex.   App. 

Campbell,    89    Mass.    (7    Allen)    541  271  (1877). 

(1863)  :    Rex  r.  Murphy,  6  Car.  vt   P.  "  Kelley     v.    State,    53     Ind.    311 

103  (1833)  ;  s.c.  25  Eng.  C.  L,  343,  (1876). 


SEC.  34.]  CRIMINAL  HOMICIDE.  37 

Sec.  33.  Death  accelerated  by  accused.  —  In  a  case  where 
the  indictment  is  found  for  murder,  if  it  appear  that  the  death 
of  the  deceased  was  accelerated  by  the  violence  of  the  pris- 
oner, his  guilt  is  not  extenuated  because  death  might  and 
probably  would  have  been  the  result  of  the  disease  with  which 
the  deceased  was  afflicted  at  the  time  of  the  violence.^  Where 
a  person  has  inflicted  wounds  upon  another  which  are  fatal, 
and  of  which  the  latter  dies,  or  which  are  dangerous  in  them- 
selves, though  not  necessarily  fatal,  and  cause  congestion  of 
the  brain,  Avhich  so  induced,  causes  the  exposure  of  the  injured 
person  to  the  inclemencies  of  the  weather,  from  the  effects 
of  which  he  dies,  it  must  be  deemed  that  the  person  wlio  gave 
the  wounds  caused  the  death  by  the  infliction  of  them.^ 

Thus  where  A.  with  a  felonious  intent  inflicted  a  wound 
upon  B.,  and  within  a  year  and  a  day  death  resulted,  not  from 
the  wound  immediately,  but  mediately,  as  from  inflammation 
caused  by  the  wound  and  occasioned  by  improper  treatment 
on  the  part  of  the  attendants,  it  was  held  that  this  may  be 
murder  in  the  first  or  second  degree,  or  manslaughter,  as  the 
case  may  be.^ 

Sec.  34.  Proper  medical  treatment.  —  Stephen  says  that 
it  is  immaterial  whether  the  treatment  was  proper  or  mis- 
taken, if  it  was  employed  in  good  faith,  and  with  common 
knowledge  and  skill ;  but  the  person  inflicting  the  injury 
is  not  deemed  to  have  caused  the  death  if  the  treatment, 
which  was  the  immediate  cause,  was  not  employed  in  good 
faith,  or  was  so  employed  without  common  knowledge  or 
skill.*  Thus  where  the  wound  is  adequate  and  calculated 
to  produce  death,  it  has  been  held  to  be  no  excuse  to  show 
that  had  proper  caution  and  attention  been  given,  a  recovery 
might  have  ensued,  for  neglect  or  maltreatment  will  not 
excuse,  except  in  cases  where  doubt  exists  as  to  the  character 
of  the  wound.^ 

Where  death  ensues  in  consequence  of  the  unlawful  act  of 
another,  it  iis  not  necessary  that  the  fatal  result  should  have 


1  State  V.  Morea,  2  Ala.  275  (1841).  *  Stephen's  Dig.  Cr.  L.  loG. 

2Kelleyy.  State,  53  Ind.  311  (1870).  5  MeAilister  v.  State,  17  Ala.  434 

3  Kee  r.  State,  28  Ark.  155  (1873);  (1850);    State    v.    Corbett,    1    Jones 

B.C.  2  Am.  Cr,  Rep.  203.  (N.  C.)  L.  265  (1853). 


38  HOMICIDE.  [chap.  III. 

sprung  from  an  act  of  commission  ;  but  if  defendant  omitted 
any  act  incumbent  on  him,  from  which  death  resulted  to  the 
deceased,  if  there  was  no  malice  it  is  manslaughter,  if  there 
was  malice  it  is  murder.^ 

Sec.  35.    Same  —  Failure  to    procure  medical  aid.  —  It 

has  been  said  that  a  person  who  criminally  gives  another  a 
wound  which  is  not  necessarily  fatal,  and  who  wilfully 
neglects  to  procure  aid  and  surgical  attendance,  in  conse- 
quence of  which  failure  the  injured  person  dies,  such  person 
will  be  guilty  of  homicide  the  same  as  if  the  wound  had  been 
in  itself  a  fatal  one.  The  fact  that  the  friends  and  family  of 
the  deceased  were  present  at  the  occurrence,  it  seems,  makes 
no  difference.^ 

Sec.  36.    Same  —  Erroneous  medical  treatment.  —  It  has 

been  held,  however,  that  the  person  causing  the  original  wound 
is  not  responsible  for  death  resulting  from  grossly  erroneous 
medical  or  surgical  treatment ;  ^  but  the  soundness  of  this 
doctrine  is  very  much  questioned.  It  is  the  well-established 
rule  that  every  man  is  presumed  to  intend  the  natural  conse- 
quences of  his  acts,  and  where  one  does  an  illegal  act  he  is 
responsible  for  all  the  consequences  that  legitimately  flow 
therefrom.  Where  a  party,  by  his  wrongful  act,  makes  the 
calling  of  a  surgeon  or  a  physician  necessary,  the  party  com- 
mitting the  wrongful  act,  an<l  not  the  party  injured,  should 
be  made  to  assume  all  the  risks  of  the  want  of  skill  on  the 
part  of  the  party  called  to  attend  upon  the  person  injured. 
The  Supreme  Judicial  Court  of  Massachusetts  have  held  that 
where  a  mortal  wound  has  been  inflicted,  from  the  effects  of 
which  the  injured  person  would  have  died,  and  surgical  aid 
is  administered  under  the  vain  hope  that  it  may  save  the  life 
of  the  wounded  party,  and  proves  ineffectual  in  giving  relief, 
the  party  inflicting  the  wound  will  be  held  responsible, 
although  the  surgical  operation  was  the  direct  cause  of  the 


1  State    V.    ShcUedy,    8    Iowa,  477  Bush  (Ky.)  405  (1874).    See  Parsons 
(1859).     See  ante,  %  2,  and  po.s^  §  67.  v.   State,' 21  Ala.  300   (1852);    Com- 

2  Williams    v.   State,  2  Tex.    App.  nionwealtli    v.    McPike,  57   Mass.   (3 
271  (1877).  Cash.)  181  (1849). 

3  Coffman    v.    Commonwealth,    10 


SEC.  38.]  CRIMINAL   HOMICIDE.  39 

death  of  the  wounded  party,  where  the  surgical  operation  was 
apparently  necessarily  resorted  to.^ 

Sec.  37.  Same  —  Death  from  subsequently  contracted 
disease.  —  Where  it  appears  in  a  case  of  homicide  that  a 
wound  or  beating  was  inflicted  on  deceased  which  was  not 
mortal,  and  the  deceased,  while  laboring  under  the  effects  of 
the  violence,  became  sick  of  a  disease  not  caused  by  such 
violence,  from  which  disease  death  ensued  within  a  year  and 
a  day,  it  is  thought  that  the  party  charged  with  homicide  is 
not  criminally  responsible  for  the  death,  although  it  should 
appear  that  the  symptoms  of  the  disease  were  aggravated,  and 
its  fatal  progress  quickened  by  the  enfeebled  or  irritated  con- 
dition of  the  deceased,  caused  by  the  violence.^ 

Sec.  38.    Liability  for  killing  by  third  person  —  Rioters. 

—  While  it  is  true  that  intent  is  the  essential  element  in  all 
crime,  yet  one  may  be  guilty  of  a  wrong  which  he  did  not 
specifically  intend,  if  it  came  naturally  or  even  accidentally 
through  some  other  specific  general  evil  purpose.^  Thus  one 
who  in  an  unsuccessful  attempt  to  commit  suicide  acciden- 
tally kills  another  who  is  trying  to  prevent  it,  he  is  guilty  of 
criminal  homicide.*  But  in  a  case  where,  while  the  defend- 
ants were  acting  in  a  noisy  and  disorderly  manner,  the  town- 
marshal  attempted  to  arrest  one  of  them,  whereupon  the  de- 
fendant attacked  and  knocked  him  down,  and  the  marshal 
then  fired  his  pistol  and  killed  a  bystander,  the  riotous 
defendants  were  held  not  guilty  or  responsible  for  such 
homicide,  if  there  was  nothing  in  the  character  of  the  assault 
which  would  justify  a  prudent  man  in  resorting  to  a  revolver, 
and  there  was  no  concert  of  action,  and  no  common  design  or 
purpose  between  them  and  the  assaulted  party .^ 

1  Commonwealth  v.  McPike,  57  s.c.31  Am.Rep.28;  Moynihan  y.  State, 
Mass.  (3  Gush.)  181,  188,  189  (1849).  70  Iml.  120  (1880)  ;  s.c.  36  Am.  Rep. 

2  Livingston  v.  Commonwealth,  14  178;  State  ;;.  Hardie,  47  Iowa,  647 
Gratt.  (Va.)  592  (1857).  (1878);  s.c.  29  Am.  Rep.  496;  State 

3  Spies  r.  People,  122  III.  1  (1887);  v.  Emery,  78  Mo.  77  (1883)  ;  s.c.  47 
s.c.  3  Am.  St.  Rep.  320  ;  9  Cr.  L.  Mag.  Am.  Rep.  92  ;  Robertson  v.  State,  2 
829;  6  Am.  Cr.  Rep.  570;  12  N.  E.  Lea  (Tenn.)  239  (1879);  s.c.  31  Am. 
Rep.  865.  Rep.  602. 

4  Commonwealths. Mink,  123 Mass.  ^  Butler  v.  People,  125  111.  641 
422  (1877)  ;  s.c.  25  Am.  Rep.  109.  See  (1888)  ;  s.c.  8  Am.  St.  Rep.  423;  18 
Washington  v.  State,  60  Ala.  10  (1877);  N.  E.  Rep.  338 ;  1  L.  R.  A.  211 ;  Com- 


40  HOMICIDE.  [chap.  III. 

While  it  is  true  that  confederates  in  a  common  design  are 
equally  liable  for  the  acts  of  each  other  in  furtherance  of  the 
common  design,  yet  for  collateral  crimes  which  are  not 
embraced  in  a  common  design,  the  rule  is  otherwise.^  In 
those  cases  where  the  act  committed  has  no  connection  with 
the  common  object,  the  party  committing  it  is  alone  resj)onsi- 
ble  for  its  consequences.^ 

Sec.  39.  Death  by  repeated  acts.  —  The  above  rule  does 
not  extend  to  the  case  of  a  person  whose  death  is  caused  not 
by  any  one  fatal  injury  but  by  repeating  acts  affecting  the 
body  which  collectively  caused  death,  though  no  one  of  them 
by  itself  would  have  caused  death.^  Lord  Hale's  reason  for 
the  rule  is  that  "  secret  things  belong  to  God ;  and  hence  it 
was  that  before  I  James  1,  c.  12,  witchcraft  or  fascination 
was  not  felony,  because  it  wanted  a  trial."  *  The  fear  of 
encouraging  prosecution  for  witchcraft  has  been  thought  by 
some  to  furnish  the  real  reason  of  this  rule.  Doctor  Whar- 
ton rationalizes  the  rule  thus :  "  Death  from  nervous  causes 
does  not  involve  penal  consequences.  This  appears  to  me  to 
substitute  an  arbitrary  quasi-scientii\c  rule  for  a  bad  rule 
founded  on  ignorance  now  dispelled.  Suppose  a  man  were 
intentionally  killed  by  being  kept  awake  till  the  nervous 
irritation  of  sleeplessness  killed  him  ;  might  not  this  be  mur- 
der ?  Suppose  a  man  kills  a  sick  man,  intentionally  by  mak- 
ing a  loud  noise  which  wakes  him  when  sleep  gives  him  a 
chance  of  life  ;  or  suppose,  knowing  that  a  man  has  aneurism 
of  the  heart,  his  heir  rushes  into  his,  room  and  roars  in  his 
ear,  '  Your  wife  is  dead ! '  intending  to  kill  and  killing  him  ; 
why  are  not  these  acts  murder? 

nionwealtli  v.  Campbell,  89  Mass.   (7  Tieg.  v.  Price,  8  Cox  C.  C.  90  (1858)  ; 

Allen)  541  (1808).  Reg.  v.  Skeet,  4  Post.  &  V.  931  (IBOfi); 

1  People   r.    Knapp,  20    Mich.  112  Rex   r.   White,  Russ.   &   R.  C.  C.  99 

(1872);    State    v.    Stalcup,    1     Ired.  (1805) ;  Rex  p.  McMakin,  Russ.  &  R. 

(N.  C.)  L.  30  (1840)  ;  Watts  r.  State,  C.  C.  333  (1808),  note. 

6  \V.  Va.  532   (1872)  ;  United  States  2  prank  v.  State,  27  Ala.  37  (1855); 

V.  Jones,  3  Wash.  C.   C.  209  (1813);  People  v.  Leith,  52  Cal.  251    (1877); 

Reg.    V.    Howell,    9   Car.    &    P.    437  Heine    r.    Comnionwealtli,  91  Pa.  St. 

(1839)  ;  s.r.  38  Eng.  C.  L.  239;  Reg.  148  (1879). 

r.  Cruse,  8  Car.  &  P.  540  (1838);  s.c.  »  Commonwealth    r.    Strafford,   00 

.34  Eng.  C.  L.   881;  Rex  r.  Murphy,  0  Mass.   (12    Cash.)    019    (1853);    Ste- 

Car.  &  P.   103  (18.33)  ;    s.c.  25  Kng.  plum's  Dig.  Cr.  L.  159. 

C.  L.  343;  Rex  c.  CoUison,  4  Car.  &  P.  ••   I  hat    is.    I    suj>pose,   because    of 

665  (1831);  s.c.   19  Eng.  C.  L.  052;  the  difficulty  of  proof. 


SEC.  39.]  CRianNAL   HOMICIDE.  41 

"  They  are  no  more  '  secret  things  belonging  to  God '  than 
the  operation  of  arsenic.  As  to  the  fear  that  by  admitting 
that  such  acts  are  murder,  people  might  be  rendered  liable  to 
prosecution  for  breaking  the  hearts  of  their  fathers  or  wives 
by  bad  conduct,  the  answer  is  that  such  an  event  could  never 
be  proved.  A  long  course  of  conduct  gradually  '  breaking  a 
man's  heart,'  could  never  be  the  direct  or  innnediate  cause  of 
death.  If  it  was,  and  it  was  intended  to  have  that  effect, 
why  should  it  not  be  murder?  In  Reg.  v.  Towers,^  a  man 
was  convicted  of  manslaughter,  for  frightening  a  child  to 
death."  2 

Lord  Hale  doubts  whether  voluntarily  and  maliciously 
infecting  a  person  of  the  i^lague,  and  so  causing  his  death, 
would  be  murder,^  but  it  is  hard  to  say  Avhy.  He  argues 
that  "infection  is  God's  arrow."  A  different  view  was  taken 
in  the  analosrous  case  of  lleg;.  v.  Greenwood.*  In  this  case  the 
prisoner  was  indicted  for  the  murder  of  a  child  under  ten. 
On  the  trial  it  appeared  that  he  had  had  carnal  connection 
with  her  and  given  her  a  venereal  disease  of  which  she  after- 
wards died.  The  court  told  the  jury  that  if  they  were  of 
the  opinion  that  the  prisoner  had  had  connection  with  the 
deceased  girl,  and  that  she  died  from  its  effects,  then  the 
act  being,  under  the  circumstances  of  the  case,  a  felony  in 
point  of  law,  this  would  of  itself  be  such  malice  as  would 
justify  them  in  finding  a  verdict  of  murder.^ 

In  one  case  it  is  said  :  "  The  court  are  of  the  opinion  that 
murder  may  be  committed  in  the  manner  set  forth  in  this 
indictment.  It  is  unusual,  but  we  cannot  say  it  is  impossible, 
or  that  the  evidence  will  not  sustain  it.  Take  the  case  of 
poisoning  referred  to  in  Hawkins'  Pleas  of  the  Crown,  where 
poison  is  administered  at  different  times.  Murder  is  the 
result,  and  it  is  proper  to  set  forth  in  the  indictment  that 
it  was  committed  by  poison  administered  at  various  times. 
Take  a  case  of  starvation :  a  person  may  be  deprived  of  food 
at  various  times,  and  so  reduced  as  to  produce  death ;  the 

1  12  Cox  C.  C.  [>m  (1870).  *  7  Cox  C.  C.  404  (1857)  ;   s.c.   1 

2  See  Whart.    on    Horn.    (2d    ed.)     Russ.  on  Cr.  (otli  Eng.  ed.)  673. 

§  372.     As  to  responsibility  for  death  ^  The  prisoner  was  found  guilty  of 

caused  thus  indirectly,  see  ante,  §  2.         manslaughter. 

3  1  Hale  P.  C.  432. 


42 


HOMICIDE. 


[chap.  hi. 


proper  mode  of  setting  forth  the  offence  would  be  that  the 
person  came  to  his  death  by  being  deprived  of  food  at  various 
times."  1 

Sec.  40.    Death   caused   through   irresponsible   ag^ent  — 

Children  and  idiots.  —  Where  a  child,  without  discretion, 
an  idiot  or  a  madman,  is  induced  by  a  third  person  to  commit 
homicide,  the  instigator  alone  is  guilty,  and  although  not 
present  at  the  perpetration  of  the  crime,  he  is  liable  to  the 
same  extent  as  if  personally  present  ;2  and  this  is  so  even 
though  such  third  person  Avere  at  the  time  in  another  juris- 
diction.^ This  is  on  the  common  law  principal  qui  facit  per 
alium^facit  per  se,  which,  according  to  Connecticut  authority, 
"is  of  universal  application  both  in  criminal  and  civil  cases." ^ 

Sec.  41.    Same  —  Letting  loose  savage  animal.  —  It  was 

formerly  held  that  a  man  who  had  a  beast  that  is  used  to  do 
mischief,  and  he  knowing  it,  suffers  it  to  go  abroad  and  the 
animal  kills  a  man,  the  owner  is  guilty  of  manslaughter.^ 
And  it  is  agreed  on  all  hands  that  such  a  person  is  guilty  of 
very  gross  misdemeanor.^  But  a  man  who  lets  loose  such  an 
animal  with  a  knowledge  of  its  vicious  propensities,  and  it  kills 
a  man,  at  common  law  he  is  guilty  of  murder,^  the  same  as  if 
he  had  incited  a  dog  or  a  bear  to  worry  people  where  it  was 
done  merely  to  frighten  them  and  make  what  is  called  sport ;  ^ 
and  this  is  true  in  all  cases  where  the  party  was  in  such  a 


1  Rorr.  V.  Bird,  T.  &  M.  4;]7  (1851); 
s.c.  2  Eng.  L.  &  Eq.  448 ;  3  Chitt.  Cr. 
L.  777 ;  ;J  Ct).  Inst.  50. 

2  Conimotnveiilth  v.  Hill,  11  Mass. 
13G  (1814)  ;  People  v.  Adams,  3  Den. 
(N.  Y.)  190  (1846)  ;  s.c.  45  Am.  Dec. 
408,  470  ;  Keg.  v.  Michael,  9  Car.  &  P. 
350  (1840);  s.c.  38  Eng.  C.  L.  213; 
1  Chit.  Cr.  L.  1!>1  ;  1  Hawk.  P.  C. 
(Curw.  ed.)  92;  Foster's  Cr.  L.  343; 
1  Hale  P.  C.  G17  ;  Stephen's  Cr.  L.  7, 
141.     See  }wst,  §  108. 

3  Commonwealth  i\  Maeloon,  101 
Mass.  1  (1809)  ;  People  >:  Adams,  3 
Den.  (N.  Y.)  190  (1840);  Rex  v. 
Cooper,  5  Car.  &  P.  535  (1833);  s.c. 
24  Eng.  C.  L.  094;  Reg.  v.  Bnll,  1 
Cox  C.  C.  281  (1845)  ;  Res.',  r.  Man- 
ley,  1  Cox  C.  C.  104  (1844)  ;  Reg.  v. 


Vallcr,  1  Cox  C.  C.  84  (1844)  ;  Rex  i;. 
Brisac,  4  East,  164  (1803) ;  Reg.  v. 
Bannen,  2  Moo.  C.  C.  309  (1844); 
Reg.  V.  Michael,  2  Moo.  C.  C.  120 
(1840). 

■*  Barkhamsted  v.  Parsons,  3  Conn. 
8  (1817).  See  People  v.  Adams,  3 
Den.  (N.  Y.)  190  (1846);  s.c.  45  Am. 
Dec.  408,  470. 

5  4  Bl.  Comm.  197. 

^  1  Russ.  on  Cr.  (5th  Eng.  ed.) 
602;  1  Hawk.  P.  C.  31,  §  8. 

"  Commonwealth  '•.  Macloon,  101 
Mass.  1,  7  (1869);  Reg.  v.  Dant,  10 
Cox  C.  C.  102  (1865) ;  s.c.  Leigh  &  C. 
567.  The  same  is  true  by  the  Jewish 
law.     See  Exod.  c.  xxi.  v.  29. 

>*  4  Bl.  Comm.  197;  Palm.  431; 
1  Hale  P.  C.  430. 


SEC.  42.]  CRIMINAL   HOMICIDE.  43 

position  that  he  should  have  known  the  vicious  tendencies 
of  the  animal.^  In  those  cases  where  tlie  mischief  was  unin- 
tended by  the  defendant,  the  crime  is  manslaughter ;  in  those 
where  designed,  it  is  murder. 

Sec.  42.    Same  —  Producing  conviction  by  perjury.  —  It 

seems  that  by  the  ancient  common  law,  the  bearing  false  wit- 
ness against  another  with  an  express  and  premeditated  design 
to  take  away  his  life  so  that  the  innocent  person  be  con- 
demned and  executed,  was  murder.^  Much  doubt  has  been 
entertained  in  modern  times  whether  this  Avas  ever  truly  the 
law.3  Certain  it  is  that  a  very  long  period  has  elapsed  since 
this  has  been  holden  to  be  murder.  The  last  case  on  record 
of  a  prosecution  for  this  offence,  is  that  of  Rex  v.  Macdan- 
iel,*  whereia  Macdaniel,  Berry,  and  Jones  were  indicted  for 
murder  upon  a  conspiracy  to  encompass  the  death  of  one 
Kidden,  who  had  been  convicted  and  executed  for  a  robbery 
upon  the  highway,  upon  the  evidence  of  Berry  and  Jones ; 
they  were  convicted  and  judgment  was  respited  in  order 
that  the  point  of,  law  might  be  more  fully  considered  upon 
a  motion  in  arrest  of  judgment.  Russell  says  ^  that  the  attor- 
ney-general declined  to  argue  this  point  for  prudential  reasons, 
and  the  prisoners  were  therefore  dismissed.  The  principal 
reason  why  the  attorney-general  refused  to  argue  this  point 
seems  to  have  been  the  fear  that  witness  might  be  deterred 
from  giving  evidence  upon  capital  prosecutions,  if  it  must  be 
at  the  peril  of  their  own  lives.^ 

While  it  is  true  that,  as  Russell  says,'  in  foro  conscientice, 
this  offence  is  beyond  doubt  of  the  deepest  malignity,^  yet 
it  is  equally  true,  as  Bishop  says,^  that  "  perjury  is  an  offence 
different  from  murder ;  the  inflicting  of  a  capital  punishment 
by  officers  of  the  law  in  conformity  to  a  judicial  record  can 
hardly  be  deemed  the  act  of  the  false  witness ;  and  should 


1  See  Whart.  on  Ne?.  §  904  et  seq.  ^  Fost.     C.    C.    131     (1756)  ;    s.c. 

2  See   1   Russ.   Cr.    (5th   Enc^.  ed.)  1  Leach  C.  C.  44. 

662;    1   Bish.   Cr.   L.   (7th  ed.)   564;  ^  i  Russ.  Cr.  (5th  Engr.  ed.)  662. 

4  Bl.  Comm.  196;  Mirror,  c.  1,  §  9;  ^  See  4  Bl.  Conim.   196,  note  (g) ; 

Brit.  c.  52  ;  Bract,  lib.  3,  c.  4  ;  1  Hawk.  1  East  P.  C,  c.  5,  §  94,  p.  333,  note  (a). 
P.  C,  c.  31,  §  7 ;  3  Co.  Inst.  91.  '  1  Russ.  Cr.  (5th  Eng.  ed.)  660. 

3  1  Russ.  Cr.  (5th  Eng.  ed.)  662;  »  See  Deut.  c.  xix.  v.  16  et  seq. 
1  Bish.  Cr.  L.  (7th  ed.)  564.                           ^  1  Bish.  Cr.  L.  (7th  ed.)  564. 


4-i  HOMICIDE,  [chap.  III. 

we  undertake  to  regard  the  government  as  the  innocent  agent 
of  the  witness,  there  is  a  difficulty  in  making  the  act  and 
intent  appear  concurrent  in  point  of  time,  because  he  has  lost 
power  over  this  agent,  and  he  cannot  prevent  the  execution 
if  he  repents." 

Sec.  43.  Continuing  offences.  —  A  person  who  unlaw- 
fully sets  tlie  means  of  death  in  motion,  whether  through 
an  irresponsible  instrument  or  agent,  or  in  the  body  of  the 
victim,  is  the  guilty  cause  of  the  death  at  the  time  and  place 
at  which  his  unlawful  act  produces  its  result ;  and,  accord- 
ing to  the  great  weight  of  authority,  may  then  and  there 
be  tried  and  punished,  under  express  statute,  if  not  by  the 
common  law.^  A  similar  doctrine  prevails  in  California,^ 
Michigan,^  and  Tennessee  ;  *  but  a  contrary  doctrine  seems 
to  prevail  in  New  Jersey,  where  it  has  been  held  that  where  a 
blow  was  struck  in  New  York  and  the  death  occurred  in  New 
Jersey,  an  enactment  allowing  the  party  who  gave  the  blow 
to  be  prosecuted  in  New  Jersey  "upon  general  principles 
would  necessarily  be  void:  it  would  give  to  the  courts  of  this 
state  jurisdiction  over  all  the  subjects  of  all  the  governments 
of  the  earth,  with  power  to  try  and  punish  them,  if  they  could 
by  force  or  fraud  get  possession  of  their  persons,  in  all  cases 
where  personal  injuries  are  followed  by  death.  .  .  .  No  act 
is  done  in  this  state  by  the  defendant.  He  sent  no  missile 
or  letter  or  message  that  operated  as  an  act  within  tins  state. 
The  coming  of  the  party  injured  into  this  state  afterwards 
was  his  own  voluntary  act,  and  in  no  way  the  act  of  the 
defendant.  .  .  .  An  act,  to  be  criminal,  must  be  alleged  to 
be  an  offence  against  the  sovereignty  of  the  government. 
This  is  the  very  essence  of  crime  puuisliable  by  human  law. 
How  can  an  act  done  in  one  jurisdiction  be  an  olfence 
against  tlie  sovereignty  of  another?"^ 

It  seems  that  anciently  the  courts  doubted  whether,  if  a 
blow  were  struck  in  one  country  and  death  ensued  in  another, 

'  Commonwealth   r.    Mac-loon,   101  Mich.  472   (1850)  ;    People   r.   Tyler, 

Mass.  1,  7  (1809).     See  Grosvenor  v.  7  Mieli.  101  (185i)). 
St.  Ausustine,  12  East,  2U  (1810).  ■»  Riley  i-.  Stjite, !»  Iluinpli.  (Tenn.) 

2  People  V.  Gill,  0  Cat.  0;]7  (1856).  040.  057  (1849). 

■■'  Tyler  v.  Pe<.ple,  8  Mich.  .'^'O,  :}.]4  ^  State   v.    Carter,  27  N.   J.   L.   (3 

(18G0).     See   Bromley   v.    People,   7  Dutch.)  499,  500,  501  (1859). 


SEC.  44.]  CRIMIXAL    HOMICIDE.  45 

the  offence  could  be  prosecuted  in  either,  though  the  more 
common  opinion  was  that  the  party  offending  might  be 
indicted  in  the  country  where  the  blow  was  given.i  The 
difficulty  was  overcome,  however,  by  carrying  the  dead  body 
back  into  the  country  where  the  blow  was  struck,  that  the 
jury  might  there  inquire  both  of  the  stroke  and  tlie  death.^ 

The  general  doctrine  now  is  that  the  blow  or  act  is  "  mur- 
der or  not,  according  as  it  produces  death  within  a  year  and 
a  day  or  not :  ^  and  therefore  in  all  cases  an  indictment  lies 
in  the  country  where  the  blow  was  given."  * 

Sec.  44.  Same  —  IiHlictinent.  —  Where  a  blow  is  struck 
in  one  jurisdiction,  and  death  occurs  in  another,  the  crime  not 
being  murder  nor  manslaughter  before  the  death,  an  indict- 
ment alleging  the  stroke  at  one  day  and  place,  and  the  death 
at  another  day  and  place,  is  good  if  it  alleges  the  murder  or 
manslaughter  to  have  been  at  the  time  and  place  of  the 
death,  but  bad  if  it  alleges  that  the  defendant  killed  and 
murdered  the  deceased  at  the  day  and  place  at  which  the 
stroke  was  given ;  for,  in  the  words  of  Lord  Coke,  "  though 
to  some  purpose  the  death  hath  relation  to  the  blow,  yet  this 
relation,  being  a  fiction  in  *law,  maketh  not  the  felony  to  be 
then  committed."  ^  So  the  year  and  day  "  after  the  deed  — 
apres  le  fait,'"  within  which,  by  the  statute  of  Gloucester,  an 
appeal  of  murder  must  be  brought,  Avas  held  not  to  run  from 
the  blow,  but  from  the  death ;  "  for  before  that  time  no 
felony  was  committed."^  And  manslaughter  arising  out  of 
a  blow  struck  in  one  county,  followed  by  death  in  another, 
was  held  by  Mr.  Justice  Littledale  to  be  a  felony  "  begun  in 
one  county  and  completed  in  another,"  within  the  meaning 

1  See   1   Hale    P.   C.    426;     1    East  182,   185    (1848);    Rex    r.   Ilarjrrave, 

P.  C.  pp.  Sm,  363  et  seq.;  3  Co.  Inst.  6  Car.  &  P.  170  (1831);  s.c.  24  Eng. 

48  :  1  Hawk.  P.  C.  (6th  e<l.)  c.  31,  §  13.  C.  L.  500. 

^  See  1  Stark  Cr.  PI.  (2d  cd.)  3,  4,  *  1    Bish.    Cr.   Pr.    (3d    ed.)    §  51. 

note.     Also  Benson  v.  OfHey,  2  Show.  See  Riley  v.  State,  9  Humph.  (Tenn.) 

510    (1688);    s.c.  suh   now."  Bauson  r.  646(1840);  State  v.  Pauley,  12  Wis. 

Offley,  3  Salk.  38.  537   (I860):   Re.v  v.  Burdett,  4  B.  & 

3  People  V.  Gill,  6  Cal.  637  (1856)  ;  Aid.  05.  173  (1820)  ;   s.c.  6  Eng.  C.  L. 

State  V.  Bowen,  16  Kan.  475  (1876)  ;  404,  437. 

Commonwealth  v.  Roby,  20  Mass.  (12  ^  2  Co.  Inst.  818;  1  Hale  P.  C.  427 ; 

Pick.)  406,  505,  506  (1832);  State  v.  2  Hale  P.  C.  188. 

Gessert,  21  Minn.  360  (1875) ;  Burns  «  2  Co.  Inst.  320;  1  Hale  P.  C.  427. 
V.  People,  1  Park.  Cr.  Cas.  (N.  Y.) 


46  HOMICIDE.  [chap.  III. 

of  the  modern  English  statute,  authorizing  such  a  felony  to 
be  indicted  in  either  county.^ 

It  has  been  said  that  whenever  at  common  law  murder 
escaped  punishment  at  the  place  of  the  death,  it  was  not 
from  a  want  of  authority  in  the  government,  but  from  a 
defect  in  the  laws  regulating  the  mode  of  prosecution  and 
trial.2  In  the  beginning  of  the  reign  of  Edward  III.,  if  a 
man  died  in  one  county  of  a  wound  received  in  another,  the 
murderer  might  be  indicted  and  arraigned  in  the  county 
where  the  death  happened,  although  the  cause  of  his  death 
began  in  the  other  county.^  At  a  later  period,  however,  it 
was  held  that  whei-e  a  man  was  feloniously  stricken  or  pois- 
oned in  one  county,  and  died  in  another  county,  no  indict- 
ment could  be  found  in  either  county,  because  both  the 
stroke  and  the  death  were  necessary  to  constitute  the  crime, 
and  the  jurors  of  one  county  could  not  inquire  of  that  which 
was  done  in  another,  "  unless,"  Lord  Hale  says,  "  they  were 
specially  enabled  by  act  of  Parliament " ;  and  for  this  reason 
the  custom  at  one  time  prevailed  of  taking  the  dead  body 
into  the  county  where  the  mortal  stroke  was  given,  and  hav- 
ing an  indictment  found  and  trj^d  there;  and,  in  carrying 
out  the  same  principle,  it  was  held  that  an  appeal  of  murder, 
which  required  no  indictment,  but  was  sued  out  by  the  near- 
est relation,  and  prosecuted  by  the  king  only  in  case  of  the 
withdrawal  of  the  appellant,  might  be  brought  in  the  county 
of  the  death,  although  the  mortal  stroke  was  given  in  another 
county,  providing  there  were  legal  means  of  summoning  a 
jury  for  the  trial  out  of  both  counties,  and  not  otherwise.'* 

Sec.  45.  —  Same  —  Jurisdiction.  —  As  between  the  differ- 
ent states  of  the  Union  the  jurisdiction  over  a  homicide  is  held 
to  exist  at  common  law  by  some  of  the  courts,^  while  others 

1  See  Coniinonwealth    r.   Macloon,  moinvoaltli,  I  Diiv.  (Ky.)  15.'5  (1804)  ; 

101  Mass.  1,  8  (18fin);  Hex  v.  Jones,  Cummings    r.    State,    I    Harr.    &    J. 

1  Hiiss.  on  Or.  (:Jd  Eng.  ed.)  C^W.  r^r^O.  (M<1.)  840  (1802)  ;  Commonwealth  r. 

■■^  Coninionwealth    r.    .Macloon,  101  Holder,  7^')  Mass.  ((»  Gray)  7  (18o7); 

Mass.  1,8  (18(iO).  Commonwealth  r.  Andrews,  2    Mass. 

^  Fit/..  Ah.  Corone,  87.",.  14  (180(>)  ;  .s.c.  .8  Am.  Dec.  17;   Wat- 

U)  Hen.  Vir.  10,  pi.  7;  8  Inst.  48,  son    v.   State,   3t)    Miss.  593    (1859); 

49;  2  Hale  ]'.  C.  108;  1  Stark  Cr.  I'l.  State  r.  Brown,  1    Hay.  (N.  C.)   100 

8  and  notes.  (1794);   s.r.  1  Am.  Dec.  548;   Hamil- 

6  State  V.  Ellis,  8  Conn.  180  (1819) ;  ton  r.  State,  11  Ohio  485  (1842). 
8.C.  8  Am.   Dec.  175;  Ferrill  r.  Com- 


SEC.  45.]  CRIlVriNAL   HOMICmE.  47 

maintain  a  contrary  doctrine.^  Statutes  conferriiig  such 
jurisdiction  have  been  held  to  be  constitutional.^ 

The  question  as  to  the  jurisdiction,  where  an  act  is  com- 
menced in  one  country  and  terminated  in  another,  as  where 
a  blow  is  struck  in  one  country  and  the  victim  dies  in 
another,  has  been  much  discussed  in  England  and  America. 
The  earlier  cases  are  fluctuating  and  unsatisfactory.^  The 
United  States  courts  hold  that  such  jurisdiction  does  not 
exist  unless  conferred  by  statute.*  State  statutes  conferring 
such  jurisdiction  have  been  held  to  be  constitutional  by  the 
various  state  courts.^ 

The  general  principle  that  a  person  who  does  a  criminal 
act  in  one  country  is  liable  for  its  continuous  operation  in 
another,  has  been  frequently  affirmed.  Thus,  a  person  stand- 
ing on  the  Canada  side  of  the  Niagara  river,  and  shooting  at 
and  killing  a  person  on  the  American  side,  will  be  amenable 
to  the  laws  of  the  place  where  the  man  died ;  ^  but  not  until 
he,  is  personally  wathin  the  jurisdiction  of  such  country.'^ 
Thus,  where  one  man  struck  another  a  fatal  blow  in  Canada 
and  the  latteV  died  in  Michigan,  he  was  lield  to  be  answerable 
in  Michigan.^ 

Statutes  conferring  such  jurisdiction  are  founded  upon  the 
general  power  of  the  legislature,  except  so  far  as  restrained 
by  the  constitutions  of  the  commonwealth  and  the  United 
States,  to  declare  any  wilful  or  negligent  act  which  causes  an 
injury  to  person  or  property  ^vithin  its  territory  to  be  a  crime, 
and  to  provide  for  the  punishment  of  the  offender  upon  being 
apprehended  within  its  jurisdiction.^ 

1  State  V.  Carter,  27  N.  J.  L.  (3  °  State  v.  Seay,  Pj  Stew.  (Ala.)  123 
Dutch.)  500  (1859) ;  State  v.  Le-  (1830)  ;  Commonwealth  v.  Maeloon, 
Blanch,  31  N.  ,J.  L.  (2  Vr.)  82  (1864)  ;  101  Mass.  1  (1809) ;  Tyler  v.  People, 
Simmons  v.  Commonwealth,  5  Binn.  8  Mich.  326  (1860);  Hemmaker  v. 
(Pa.)  619  (1813).  State,  12  Mo.  453  (1849);  People  v. 

2  Beal  V.  State,  15  Ind.  378  (1860)  ;  Burke,  11  Wend.  (X.  Y.)  129  (18.34). 
Simmons  v.  Commonwealth,  5  Binn.  «  State  v.  Wyckoff,  31  N.  J.  L  (2 
(Pa.)  619  (1813);  Simpson  v.  State,  Vr.)  68  (1864),  Commonwealth  i-.Mac- 
4  Humph.  (Tenn.)  461  (1844).  loon,  101  Mass.  1  (1869) ;  United  States 

3  See  Co.  Litt.74  b;  3  Co.  Inst.  48;  v.  Davis,  2  Sumn.  C.  C.  482  (1837). 
Hale,  426,  500;  2  Hale  P.  C.  20,  163.  "  Reg.  v.  Garrett,  6  Cox  C.  C.  260 

*  United    States    v.   ArmstrnnEr.    2  (1853). 
Curt.  C.  C.  446  (1855)  ;  United  States  » Tyler  r.People,  8  Mich.  326(1860). 

I-.  McGill,  4  Dall.  C.  C.  427   (1806)  ;  •'  Commonwealth    v.  Macloon,   101 

s.c.  1  Wash.  C.  C.  463.  Mass.  .1,  5  (1869). 


48  HOMICIDE.  [chap.  III. 

It  has  been  said  that  whenever  any  act  is  committed 
partly  in  and  partly  out  of  a  jurisdiction,  the  question  is 
whether  so  much  of  the  act  as  operates  in  the  country  or 
state  in  which  the  offender  is  indicted  and  tried  has  been 
declared  to  be  punishable  by  the  law  of  the  jurisdiction.^ 

Sec.  46.  Wound  inflicted  on  high  seas.^  —  In  the  case  of 
Commonwealth  v.  Macloon,^  it  was  held  that  a  citizen  of 
another  state  or  foreign  country  may  be  convicted  under  the 
Massachusetts  statute  ^  of  the  manslaughter  of  a  person  who 
dies  within  that  state  of  injuries  inflicted  upon  him  by  the 
accused  upon  a  foreign  merchant  vessel  upon  the  high  seas. 
It  has  been  held  by  the  Supreme  Court  of  the  United  States, 
however,  that  where  a  stroke  is  given  on  the  ocean  and  the 
injured  person  dies  on  land,  that  this  does  not  constitute 
"  murder  committed  on  the  high  seas  "  within  the  meaning 
of  the  act  of  Congress.^ 

While  it  is  true  that  penal  laws  are  local,  yet  an  offence 
may  be  committed  in  one  sovereignty  or  state  in  violation  of 
the  laws  of  another  sovereignty  or  state.  In  su^h  a  case,  if 
the  offender  is  afterwards  found  in  the  state  where  the 
offence  was  committed,  he  may  be  there  punished  according 
to  the  laws  which  he  has  violated.^ 

The  English  statute  provides  that  Avhere  the  felony  or 
misdemeanor  is  begun  in  one  country  and  completed  in 
another,  the  venue  may  be  laid  in  either  country  through 
which  the  passenger,  carriage,  or  vessel  passed." 

1  Commnnwealth    v.   Macloon,    101  Vr.)  05  (1804);  Adams  r.  People,  1 

Mass.  1,  5  (1809).  N.  Y.  173  (1848)  ;  s.c.  3  Den.  (N.  Y.) 

■■^  See  ;)os^  §  1-22.  190;    45    Am.    Dec.    408;    Coninioii- 

3  11)1  xMass.  1  (1809).  wealth  v.  Gillespie,  7  Serg.  &  K.  (Pa.) 

<  Mass.  Gen.  Stats,  c.  171,  §  19.  409    (1822)  ;    Reg.  v.  Garrett,  0   Cox 

•''See    United    States   v.   Magill,  1  C  C.  200  (185o).    See  Commonwealth 

Wash.  C.  C.  403  (1800)  ;  s.c.  snh  nom.  r.  Macloon,  101  Mass.  1,  7  (1809). 

United    States  v.  McGill,  4    U.  S.  (4  "  See   7   Geo.  IV.  c.  04,  §§   12,  13; 

Dall.)  426  (1800)  ;  bk.  1  L.  ed.  894.  1  Vict.  c.  30,  §  37. 
«  State  i:  Wyckoff,  31  N.  J.  L.  (2 


CHAPTER  IV. 

SUICIDE. 

Sec.  47.  Definition. 

Sec.  48.  Who  may  commit  suicide. 

Sec.  49.  Suicide  as  evidence  of  insanity. 

Sec.  50.  Same  —  Lucid  interval. 

Sec.  51.  Aiding  and  abetting. 

Sec.  52.  Accidental  killing. 

Sec.  53.  Accessories  before  the  fact. 

Sec.  54.  Same  —  Absence  when  act  committed  —  Effect  on  Criminality. 

Sec.  65.  Abortion  —  Killing  in  producing. 

Sec.  56.  Same  —  Causing  pregnant  woman  to  take  poison. 

Sec  57.  Same  —  Supplying  drugs  to  pregnant  woman  without  causmg 

her  to  take  them. 

Sec  58.  Attempts  to  commit  suicide. 

Sec  59.  Consent  of  deceased. 

Sec  60.  Punishment  for  suicide. 

Sec.  47.  Definition.  —  Suicide  is  a  murder  committed  by 
a  man  on  himself,  either  in  pursuance  of  a  fixed  intention, 
or  in  committing  or  attempting  to  commit  an  unhxwful,  mali- 
cious act,  the  consequence  of  which  is  his  own  death. ^  Thus 
if  a  person  in  attempting  to  kill  another  runs  upon  his  antag- 
onist's sword ;  or  shooting  at  another  with  intent  to  kill  him, 
the  gun  bursts  and  kills  himself,  he  is  a  felo  de  se.^  It  has 
been  said  that  the  distinctions  between  murder  and  man- 
slaughter attach  to  suicide,  so  far  as  they  are  applicable,  as 
well  as  to  the  killing  of  others  ;  ^  but  there  is  high  authority 
for  saying  that  a  person  cannot  commit  manslaughter  on 
himself.* 

By  the  common  law  of  England,  suicide   was  considered 

1  4  Bl.  Comm.  189 ;  Harris'  Cr.  L.  *  Reg.  v.  Burgess,  9  Cox  C  C.  247 
161.                                                                   (1862)  ;  s.c.  L.  &  C.  258  ;  per  Pollock, 

2  4  Bl.  Comm.  189 ;  1  Hale  P.  C.  C.  B.,  and  Williams,  J. ;  referring  to 
413;  Harris'  Cr.  L.  162.  Jarvis  on  Coroners,  App.  322,  note  4. 


See  3  Stephen's  Hist.  Cr.  L.  162. 
4 


49 


60  HOMICIDE.  .  [chap.  IV. 

as  a  crime  both  against  the  laws  of  God  and  man ;  the  "  one 
spiritual  in  evading  the  prerogative  of  the  Almighty,  and 
rushing  into  His  immediate  presence  uncalled  for;  the  other 
temporal,  against  the  King,  who  hath  an  interest  in  the  pres- 
ervation of  all  his  subjects ;  and  the  law  has  therefore  ranked 
this  among  the  highest  crimes."  ^ 

Sec.  48.  Who  may  commit  suicide.  —  Only  such  persons 
as  have  arrived  at  years  of  discretion  and  are  possessed  of  a 
sound  mind  and  capable  of  measuring  their  moral  responsibil- 
ity can  commit  the  crime  of  suicide,  because  the  act  is  other- 
wise no  crime  at  all.^  In  the  case  of  Connecticut  Mutual 
Life  Insurance  Company  v.  Groom*  the  court  say:  "Self- 
destruction,  under  insane  impulses  so  strong  as  to  be  beyond 
the  control  and  restraint  of  the  will,  is  a  result  produced  by 
disease,  for  which  the  victim  of  it  is  no  more  morally  respon- 
sible than  he  would  be  for  any  other  of  the  maladies  of  which 
men  die.  The  disease,  when  it  manifests  itself  in  the  form 
ot  melancholia,  which  creates  a  prevailing  propensity  to  sui- 
cide, consists  in  the  unfounded  and  morbid  fancies  of  the 
sufferer  regarding  his  means  of  subsistence  or  his  position  in 
life,  or  in  distorted  conceptions  of  his  relations  to  society  or 
his  family,  of  his  rights  or  duties,  or  of  dangers  threatening 
his  person,  property  or  reputation.  '  When  the  melancholic 
hallucination    has  fully  taken   possession  of  the  mind,'  says 

1  4  Bl.  Comm.  189.  It  has  been  said  2  4  51  Comm.  189.     See  Connecti- 

that  the  crime  of  suicide  has,  during  cut  Mut.  Life.  Ins.  Co.  v.  Groom,  86 

the  last  twenty  years,  become  of  direct  Pa.  St.  92,  97  (1878)  ;  s.c.  27  Am.  Rep. 

interest  to  the  governments  of  those  689;    also  Philips  v.  Louisiana  Equi- 

countries  where  the  whole  able-bodied  table  Life    Ins.  Co.,  26    La.  An.  404 

male    population    are,    more    or   less,  (1874)  ;  s.c.  21  Am.  Rep.  549 ;  Cooper 

under  the  control  of  a  military  organ-  v.   Massachusetts    Life    Ins.  Co.,  102 

ization;    for,    rightly    or    wrongly,   a  Mass.  227  (1869)  ;  s.c.  3  Am.  Rep.  451, 

portion    of    the    recent    considerable  and  note  454;  Van  Zandti-.  Mutual  Life 

increase  in  the  suicide  rate  of  Prus-  Ins.  Co.,  55  N.  Y.  KiO  (1873);  s.<,'.  14 

sia,    Sa.\-ony,   Austria,  and  France,  is  Am.  Rej).  215;  Phadenhauer  r.  Germa- 

thought  to  be   attributable  to  dislike  nia  Life  Ins.  Co.,  7  Ileisk.  (Tenn.)  567 

of  military   service      This  conclusion  (1872)  ;  s.c.  19  Am.  Rep.  623,  and  note 

is  arrived  at,  because  of  the  fact  that  628;  Mutual  Life  Ins.  Co.  of  N.  Y.  v. 

tlie  suicide  rate  among  the  soldiers  is  Terry,  82  U.  S.  (15  Wall.)  580  (1872)  ; 

high  in  all  countries.      See  article  by  bk.  21  L.  ed.  236. 

Dr.  Olgc  in  the  ".Journal  of  the  Sta-  »  86  Pa.  St.  92,  97  (1878);  s.c.  27 

tistical   Society,"  V^)l.  Xi-IX.,  Manli  Am.  Rep.  689,  691. 
1886;  and  also  that  of  W.  H.  Millar 
in  same,  Vol.  XXXVII. 


SEC.  49.]  SUICIDE.  51 

Abererombie, '  it  becomes  the  sole  object  of  attention,  without 
the  power  of  varying  the  impression  or  of  directing  the 
thoughts  to  any  facts  or  considerations  calculated  to  remove 
or  palliate  it.  The  evil  seems  overwhelming  and  irremediable, 
admitting  neither  of  consolation  nor  hope.  For  the  process 
of  mind  calculated  to  diminish  such  an  impression,  or  even 
to  produce  the  hope  of  a  palliation  of  the  evil,  is  precisely 
that  exercise  of  mind  which,  in  this  singular  condition,  is  lost 
or  suspended,  namely,  the  power  of  changing  the  subject  of 
thought,  of  transferring  the  attention  to  other  facts  or  con- 
siderations, and  of  comparing  the  mental  conditions  with 
these,  and  with  the  actual  state  of  things.  Under  such  a 
conviction  of  overwhelming  and  hopeless  misery,  the  feeling 
naturally  arises  of  life  being  a  burden,  and  this  is  succeeded 
by  a  determination  to  quit  it.  When  such  an  association 
has  once  been  formed,  it  also  fixes  itself  upon  the  mind,  and 
fails  to  be  corrected  by  those  considerations  which  ought  to 
remove  it.' "  ^ 

Sec.  49.'  Suicide  as  evidence  of  insanity.  —  It  is  thought, 
however,  that  the  excuse  of  insanity  should  not  be  carried  to 
such  a  length  that  the  very  act  of  suicide  itself  be  consid- 
ered as  evidence  of  insanity,  as  though  every  person  who 
acts  contrary  to  reason  had  no  reason  at  all,  because  this  line 
of  argument  would  prove  every  other  criminal  no7i  cotnpos 
mentis  as  well  as  the  self-murderer.^ 

Homicidal  insanity  should  not  be  assumed  without  satis- 
factory proof,^  and  should  be  recognized  only  in  the  clearest 
cases,  and  an  attempt  at  suicide,  of  itself,  should  not  be  re- 
garded as  evidence  of  the  fact  of  insanity,  and  should  not 
raise  a  legal  presumption  thereof.  This  fact,  however,  may 
be  considered  by  the  jury  in  connection  with  other  facts  and 
circumstances  bearing  on  the  question  of  insanity.* 


1  See  Whart.  &  Stille's  Med.  Jur.  283;    Lawson's    Insan.   146;    Ortwein 
§  20G.  (,.    Comiiionwealtli,    76    Pa.    St.    414 

2  4  Bl.  Comm.  189.  (1874)  ;  s.c.  18  Am.  Rep.  420;  1  Am. 

3  Coyle  r.  Commonwealth,  100  Pa.  Cr.  Pep.  297  ;  Lawson's  Insan.  438. 
St.  573  (1882) ;  s.c.  45  Am.  Rep.  397 ;  *  Coyle  v.  Conmionwealtli,  100  Pa. 
4  Cr.  L.  Mag.    76;    Lawson's    Insan.  St.    573    (1882);    s.c.    45    Am.    Rep. 
441 ;  Lynch  v.  Commonwealth,  77  Pa.  397  ;  4  Cr.  L.  Mag.  76 ;  Lawson's  Insan. 
St.  205  (1874);  s.c.  1  Am.  Cr.  Rep.  441. 


62 


HOMICIDE. 


[chap.  IV. 


Sec.  50.  Same  —  Lucid  interval.  —  It  is  not  every  fit  of 
despondency  or  melancholia  that  deprives  a  man  of  the  ca- 
pacity of  discerning  right  from  wrong,  which  is  necessary  to 
form  a  legal  excuse  ;  and  hence  where  a  real  lunatic  kills  him- 
self in  a  lucid  interval  he  is  afelo  de  se  as  much  as  any  man.i 

Sec.  51.  Aiding-  and  abetting-.  —  Suicide  is  held  to  be 
murder  so  fully  that  every  one  who  aids  or  abets  in  the  act 
is  guilty  of  murder.'-^  Where  one  advises  another  to  kill 
himself,  and  the  deed  is  committed  in  the  presence  of  such 
person,  he  becomes  guilty  as  a  principal,^  even  though  it  was 
voluntarily  submitted  to  by  the  deceased.*  Thus  it  was  held 
in  a  recent  case  that  if  two  persons  enter  into  an  agreement 
to  commit  suicide  together,  and  the  means  employed  to  pro- 
duce the  death  prove  fatal  to  one  only,  the  survivor  is  guilty 
of  murder.''^     It  has  been  contended  that  the  language   of 


1  4B1.  Comm.  189  ;  Hale  P.  C.  412. 
But  it  has  been  said  that  a  self-killing 
by  an  insane  person,  understanding 
the  physical  nature  and  consequence 
of  the  act,  but  not  the  moral  aspect, 
is  not  a  death  by  suicide  within  the 
meaning  of  the  condition  that  a  policy 
of  insurance  upon  liis  life  shall  be 
avoided  in  case  he  shall  die  by  sui- 
cide. Accident  Ins.  Co.  v.  Crandal, 
120  U.  S.  530  (1887);  bk.  30  L.  ed. 
740 ;  Manhattan  Ins.  Co.  v.  Brough- 
ton,  109  U.  S.  121,  127-132  (1883)  ; 
bk.  27  L.  ed.  878.  See  also  Article 
21  Cent.  L.  J.  378-381 ;  25  Am.  L. 
Reg.  386-390. 

2  3  Stephen's  Hist.  Cr.  L.  104. 

*  See  Commonwealth  v.  Dennis, 
105  Mass.  1(52  (1870)  ;  Blackburn  v. 
State,  23  Ohio  St.  146  (1872);  Keg. 
V.  Alison,  8  Car.  &  P.  418  (1838)  ;  s.c. 
34  Eng.  C.  L.  813;  Rex  v.  Hughes, 
5  Car.  &  P.  126  (1832)  ;  s.c.  24  Eng. 
C.  L.  486 ;  Re.v  v.  Dyson,  Russ.  &  Ky. 
C.  C.  523  (1823);  1  East  P.  C.  228, 
229. 

*  Rex  V.  Sawyer,  1  Russ.  Cr.  &  M. 
670  (1815)  ;  s.c.  Russ.  &  Ry.  294 ; 
Rex  V.  Dyson,  Russ.  &  Ry.  C.  C.  523 
(1823). 

5  Reg.  V.  Jessop,  10  Cr.  L.  Mag.  802 
(1887).     See  Reg.  v.  Alison,  8  Car.  & 


P.  418  (1838)  ;  s.c.  34  Eng.  C.  L.  813; 
Rex  r.  Sawyer,  1  Russ.  Cr.  &  M.  670 
(1815)  ;  s.c.  Russ.  &  Ry.  294 ;  Rex 
I'.  Dyson,  Russ.  &  Ry.  C.  C.  523  (1823). 
In  Reg.  V.  Jessop,  10  Cr.  L.  Mag. 
802  (1887),  at  the  trial,  statements 
made  by  the  prisoner  to  policemen 
and  others  subsequent  to  the  taking 
of  the  laudanum  were  put  in  evidence 
against  him,  and  were  substantially 
as  follows  :  "  We  had  arranged  to  kill 
ourselves.  Jack  Allcock  said  to  me, 
'I  am  going  to  kill  myself;  sha'n't 
you  die  witii  me?'  I  said,  '  I'm  not 
particular.'  "  It  was  further  proved 
tliat  the  prisoner  and  Allcock  went 
together  from  Gedling,  Allcock  hav- 
ing previously  bought  some  laudanum 
which  he  jxiured  into  a  large  bottle. 
At  Nottingliam  the  prisoner  bought 
small  quantities  of  laudanum  at  dif- 
ferent chemists'  shops,  Allcock  re- 
maining outside  whilst  the  purchases 
were  made.  Allcock  also  bought 
laudanum  in  the  same  way,  the  pris- 
oner remaining  outside.  All  the 
laudanum  so  bought  was  poured  into 
tlie  large  bottle,  and  the  two  men  then 
returned  to  Gedling  and  went  into  the 
barn.  The  prisoner  stated  that  he 
first  drank  more  than  half  tlie  lauda- 
num, and   Allcock   then   complained 


SEC.  51.]  SUICIDE.  53 

Justice  Patterson  ^  in  stating  the  law  on  this  subject  points 
to  the  necessity  of  a  consideration  for  such  an  agreement  in 
order  to  constitute  the  survivor  guilty  of  murder ;  but  in  the 
recent  case  of  Reg.  v.  Jessop,^  where  this  question  was  raised 
by  the  defence,  it  is  said  that  this  is  not  the  law  of  the  land. 
Where  a  person  is  charged  in  an  indictment  with  aiding, 
abetting,  or  encouraging  a  suicide,  it  is  not  necessary  for  the 
prosecution  to  prove  that  the  deceased  would  have  committed 
suicide  without  the  defendant's  counsel  or  co-operation .^  Thus 
in  the  case  of  Reg.  v.  Alison"*  a  man  and  a  woman,  unmarried, 
but  who  passed  as  man  and  wife,  being  in  want,  agreed  to  com- 
mit suicide ;  whereupon  the  man  procured  laudanum,  which 
was  taken  by  both,  resulting  in  her  death  only.  The  presid- 
ing judge  observed:  "There  is  an  old  case,  which  occurred 
as  far  back  as  the  reign  of  James  I.,  which  was  similar  to  the 
present.  In  that  case  a  husband  and  wife,  being  in  extreme 
poverty  and  great  distress  of  mind,  were  conversing  together 
on  their  unfortunate  condition,  when  the  husband  said,  '  I  am 
weary  of  life,  and  will  destroy  myself,'  upon  which  the  wife 
replied,  'If  you  do,  I  will,  too.'  The  man  then  went  out, 
and  having  bought  some  poison  he  mixed  it  with  some  drink, 
and  they  both  partook  of  it.  The  draught  was  fatal  to  the 
husband,  but  the  wife,  in  her  agony  from  the  effect  of  poison, 
seized  a  flask  of  salad  oil  and  drank  it  off,  which  caused  a 
sickness  of  the  stomach,  and  the  consequence  was  that  she 

that   the   prisoner  was   getting    more  The  entering  into  tlie  agreement  to 

than  his  share;   that  he  (the  prisoner)  kill    themselves    was    illegal.       It    is 

thereupon  handed    the  bottle  to  All-  contrary   to  the  law    of  the   land   to 

cock,  who  drank  off  the  remainder  of  commit    suicide,  and    if   two   persons 

the   laudanum  ;    and    that    he    heard  meet  together  and  agree  so  to  do,  and 

AUcock  breathing  heavily  during  the  one  of  them  dies,  it  is  murder  in  the 

night,  but  that  lie  (the  prisoner)  never  other."       The     prisoner    was    found 

went    to    sleep.       On    the    following  guilty    and    sentenced    to   death,  but 

morning  the  prisoner  was  seen  hang-  afterwards  respited, 

ing  over  a  gate  outside  the  barn,  very  i  In  Reg.  v.  Alison,  8  Car.  &  P.  418 

ill.     AUcock  was  found  in  the  barn,  (1888)  ;  s.c.  34  Eng.  C.  L.  813. 

and  died  during  the  day.     The  court  -  10  Cr.  L.  Mag.  862,864  (1887). 

instructed    the    jury    that  "a   person  ^  Commonwealth     v.     Bowen,     13 

who   administers    poison    to   another  Mass.  350  (1816)  ;  s.c.  2  Wheel.  Cr. 

with  the  intention  of   killing  him,  is  Cas.    220.       See    Commonwealth    v. 

guilty  of  murder  if  that  person  dies;  Mink,  123  Mass.  422,  427  (1877). 

and  if   two   persons  agree  tliat    they  *8  Car.  &  P.  418  (1838);    s.c.  34 

will  each  take  poison,  each  person  is  Eng.  C.  L.  813. 
a  principal,  and   each   is  guilty  ... 


54  HOMICIDE.  [chap.  IV. 

voided  the  poison  and  lier  life  was  saved.  She  was  tried  for 
the  murder  of  her  husband  in  this  very  court,  and  acquitted, 
but  solely  on  the  ground  that  being  the  wife  of  the  deceased 
she  was  under  his  control;  and  inasmuch  as  the  proposal  to 
commit  suicide  had  been  first  suggested  by  him,  it  was  con- 
sidered that  she  wiis  not  a  free  agent,  and  therefore  the  jury, 
under  the  direction  of  the  judge  who  tried  the  case,  pro- 
nounced her  not  guilty."  The  judge  further  said,  "  I  should 
not  be  discharging  my  duty  if  I  did  not  tell  you  that,  suppos- 
ing the  parties  in  this  present  case  mutually  agreed  to  commit 
suicide,  and  one  only  accomplished  that  object,  the  survivor 
will  be  guilty  of  murder  in  pomt  of  law."  The  jury  returned 
a  verdict  of  guilty.^ 

In  the  case  of  Rex  v.  Dyson  ^  the  prisoner  was  indicted  for 
the  murder  of  a  woman  by  drowning  her.  On  the  trial  it 
appeared  that  the  prisoner  and  the  deceased  had  cohabited 
together  several  months  previous  to  her  death,  and  that  she 
was  with  child  by  him ;  that  in  a  state  of  extreme  distress, 
being  unable  to  pay  for  their  lodgings,  and  having  no  place 
of  shelter,  they  went  to  Westminster  bridge  to  drown  them- 
selves in  the  Thames  river.  Here  they  got  into  a  boat,  and 
there  talked  together  for  some  time,  the  prisoner  standing 
with  his  foot  on  the  edge  of  the  boat  and  the  woman  leaning 
upon  him.  They  tumbled  into  the  water,  whether  from  acci- 
dent or  design  the  evidence  did  not  show.  The  man  scram- 
bled back  into  the  boat,  and  when  he  found  the  woman  was 
gone,  endeavored  to  save  her,  but  he  was  unable  to  do  so 
before  she  was  drowned.  The  prisoner  stated  before  the 
magistrate  that  he  intended  to  drown  himself,  Imt  dissuaded 
the  woman  from  following  his  example.  The  judge  instructed 
the  jury  that  if  the  man  intended  to  drown  himself  and  not 
that  the  woman  should  be  with  him,  they  should  acquit ;  but 
that  if  they  believed  that  they  both  went  to  the  river  for  the 
purpose  of  drowning  themselves  together,  and  each  encour- 
aged the  other  in  the  act,  the  survivor  was  guilty  of  murder. 
The  judge  also  instructed  the  jury  that  although  the  indict- 
ment charged  the  prisoner  with  throwing  the  deceased  into 


1  Reg.  .;.  Alison,  8  Car.  &   P.  418  23    Car.    &    P.   424     (1838);    s.c. 

(1838)  ;  s.c.  34  Eng.  C.  L.  813,  Kuss.  &  Ky.  C.  C.  523. 


SEC.  52.]  SUICIDE.  55 

the  water,  yet,  if  they  found  that  he  was  simply  present  at 
the  time  she  threw  herself  in,  and  consented  to  her  doing  so, 
the  act  of  the  deceased  was  to  be  considered  as  the  act  of 
both  and  they  should  convict.  The  jury  found  that  the  pris- 
oner and  the  deceased  went  to  the  river  for  the  purpose  of 
drowning  themselves,  and  the  prisoner  was  convicted.  The 
case  was  afterwards  submitted  to  the  judges  who  held  that, 
if  the  deceased  threw  herself  into  the  water  by  the  encour- 
agement of  the  prisoner,  and  because  she  thought  he  had  set 
her  the  example  in  pursuance  of  their  previous  agreement, 
he  was  a  principal  in  the  second  degree  and  guilty  of  murder. 
But  there  being  some  doubt  whether  the  deceased  had  fallen 
in  by  accident,  it  was  not  murder  in  either  of  them,  and  the 
prisoner  was  recommended  for  a  pardon. 

There  are  other  English  cases  which  lay  down  the  principal 
that  where  parties  mutually  agree  to  commit  suicide  and  one 
only  accomplishes  that  object,  the  survivor  will  be  guilty  of 
murder  in  point  of  law.^  Thus  where  a  man  and  woman, 
who  pass  for  husband  and  wife,  being  in  great  distress,  agreed 
with  each  other  to  take  poison  and  each  took  a  quantity  of 
laudanum  in  the  presence  of  the  other,  and  lay  down  together, 
wishing  to  die  in  each  other's  arms,  and  the  woman  died  but 
the  man  recovered,  he  was  held  guilty  of  murder.^ 

Sec.  52.  Accidental  killing-.  —  It  is  said  by  the  Supreme 
Judicial  Court  of  Massachusetts,  in  the  case  of  Common- 
wealth V.  Mink,3  that  although  suicide  is  no  longer  a  felony 
under  the  Massachusetts  statutes,  yet  it  is  unlawful  and  crimi- 
nal as  malum  in  se,  and  that  an  attempt  to  commit  it  is  un- 
lawful and  criminal.  Hence  if  a  person  who  has  attempted 
to  commit  suicide  accidentally  kills  another  who  tries  to  pre- 
vent its  accomplishment,  he  is  guilty  at  least  of  manslaughter, 
if  not  of  murder.* 

1  Reg.  V.  Alison,  8  Car.  &  P.  418  nihan  v.  State,  70  Iiul.  126  (1880)  ; 
(1838)  ;  s.c.  34  Eng.  C.  L.  813 ;  Anon.  s.c.  36  Am.  Rep.  178  ;  State  v.  Hardie, 
cited  8  Car.  &  P.  23.  47  Iowa,  647  (1878)  ;  s.c.  20  Am.  Rep. 

2  Reg.  V.  Alison,  8  Car.  &  P.  418  496;  Sparks  r.  Commonwealth,  3  Bush 
(1838)  ;  s.c.  34  Eng.  C.  L.  813.  (Ky.)    Ill    (1867);    State    r.   Emery, 

3  123  Mass.  422  (1877);  s.c.  25  78  Mo.  77  (1883);  s.c.  47  Am.  Rep. 
Am.  Rep.  109.  92;  State  r.Ludwig,  70  Mo.  412  (1879); 

*  See  Washington  v.  State,  60  Ala.  Buel  r.  People,  78  N.  Y.  492  (1879); 
10  (1877);  s.c.  31  Am.  Rep.  28;  Hoy-     s.c.  34  Am.  Rep.  555;    Robertson  v. 


56  HOMICIDE.  [chap.  IV. 

Sec.  53.  Accessories  before  the  fact.  —  Suicide  admits  of 
accessories  before  the  fact  as  well  as  other  felonies ;  for  if 
one  person  persuades  another  to  kill  himself,  and  he  does  so, 
the  advisor  is  guilty  of  murder. ^  But  at  common  law  there 
can  be  no  conviction  of  accessories  before  the  fact  to  suicide, 
because  the  principal  must  be  convicted  before  a  conviction 
of  the  accessory  is  possible,  and  in  suicide  there  can  be  no 
conviction  of  the  principal  for  the  ver}^  sufficient  reason  that 
he  is  beyond  the  process  of  the  court.^  But  by  statute  in 
most,  if  not  all,  the  states,  as  well  as  in  England,  advising 
another  to  commit  suicide  is  made  a  substantive  indictable 
offence.^  It  is  held  in  Massachusetts  *  that  whether  the  advice 
of  the  defendant  is  the  exclusive  cause  of  the  suicide,  is  im- 
material. The  court  say  "  the  important  fact  to  be  inquired 
into  was  whether  the  prisoner  was  instrumental  in  the  death 
of  deceased  by  advice  or  otherwise.  The  government  is  not 
bound  to  prove  that  deceased  would  not  have  hung  himself 
had  defendant's  counsel  never  reached  his  ear.  The  very  act 
of  advising  to  the  commission  of  a  crime  is  of  itself  unlawful. 
The  presumption  of  law  is,  that  advice  has  the  influence  and 
effect  intended  by  the  adviser,  unless  it  is  shown  to  have  been 
otherwise  ;  as,  that  the  counsel  was  received  with  a  scoff,  or 
was  manifestly  rejected  and  ridiculed  at  the  time  it  was 
given."  The  court  further  said  to  the  jury  that  if  they  were 
satisfied  the  deceased,  previously  to  any  acquaintance  or  con- 
versation with  the  prisoner,  had  determined  within  himself 
that  his  own  hand  should  terminate  his  existence,  and  that 
he  esteemed  the  conversation  of  the  prisoner,  so  far  as  it 
affected  himself,  as  mere  idle  talk,  that  they  should  acquit; 
but  that  if  they  found  the  prisoner  encouraged  and  kept  alive 
motives  previously  existing  in  the  deceased's  mind,  and  sug- 
gested others  to  augment  their  influence,  they  should  convict. 


State,  2  Lea  (Tenn.)  280  (1870);  s.c.  Mass.  350  (1810);  s.c.  2  Wheel.  Cr. 

31   Am.  Kep.  002  ;    Queen  v.  Martin,  Cas.  220 ;  State  c.  Liuhvig,  70  Mo.  412 

L.  U.  8  Q.  B.  Div.  54  (1881).  (1870);  Blackburn  v.  State,  23  Ohio 

1  4  Bl.  Conim.  180.  St.  105  (1872)  ;  Rex  v.  Alison,  8  Car. 

-  lief,'.  V.  Lcddington,  0  Car.  &  P.  &  P.  418  (1838);  s.c.  34  Eng.  C.  L. 

79  (1830)  ;  s.c.  38  Eng.  C.  L.  58  ;  Rex  813. 

V.  Russell,  1  Moo.  C.  C.  356  (1832);  ^  Commonwealth  cBowon.  13 Mass. 

1  Ru.'is.  Cr.  (5th  Eng.  ed.)  170.  350  (1810) ;  s.c.  2  Wheel.  Cr.  Cas.  226. 

*  See  Coumionwcalth  v.  Bowen,  13 


SEC.  55.]  SUICIDE.  57 

It  is  thought  that  wliere  one  takes  his  life  by  the  advice  of 
another,  tlie  violence  which  the  deceased  inflicted  on  himself 
may  be  charged  as  done  by  the  living  accomplice,  and  the 
indictment  need  not  differ  from  any  ordinary  one  against  a 
principal  in  the  first  degree  for  murder ;  ^  "  and  it  is  too  well 
settled  to  admit  of  a  doubt  that  if  one  stands  by  persuading 
another  to  take  his  life,  which  is  done,  that  the  former  is 
guilty  of  murder."  ^  The  Supreme  Court  of  Missouri,  in  a 
late  case,^  said  that  when  on  the  trial  of  an  indictment  under 
a  Missouri  statute,"*  making  guilty  of  manslaughter  any  per- 
son who  shall  "  deliberately  assist "  another  in  committing 
self-murder,  an  instruction  that  the  defendant  was  guilty  if 
he  was  "  deliberately  present,  assisting  "  the  deceased  in  the 
act,  is  not  erroneous. 

Sec.  54.  Same —  Absence  Avliea  act  conimittert — Effect 
on  criminality. — There  is  some  diversity  of  judicial  opinion 
as  to  the  legal  liability  of  a  party  by  whose  persuasion  and 
advice  another  in  his  absence  kills  himself ;  ^  but  the  better 
opinion  seems  to  be  that  if  one  procure  another  to  commit 
suicide,  but  is  absent  at  the  time  when  the  act  is  done,  he  is 
an  accessory  before  the  fact.*" 

Sec.  55.  Abortion  —  Killing  in  producing.  —  Killing,  in 
attempting  to  procure  a  miscarriage,  is  murder  when  the 
intention  is  to  kill  or  grievously  injure  the  woman,''  and 
manslaughter  when  the  intention  was  only  to  produce  a 
miscarriage,  if  the  agency  be  one  from  which  death  or  great 


1  Bishop's  Dir.  &  F.  §  952.  See  Mass.  356  (1816);  Vaux's  Case,  4  Co. 
Commonwealth  v.  Bowen,  18  Mass.  44(1591);  Rex  i>.  Leddington,  9  Car. 
356  (1816);  s.c.  2  Wheel.  Cr.  Cas.  &  P.  79  (1839) ;  s.c.  38  Eng.  C.  L.  58; 
226  ;  Eex  v.  Dyson,  cited  in  8  Car.  &  Rex  v.  Russell,  1  Moo.  C.  C.  356  (1832). 
P.  424  (1823)  ;  s.c.  Russ.  &  Ry.  C.  C.  ^  Reg.  v.  Leddington,  9  Car.  &  P. 
523;  Reg.  v.  Alison,  8  Car.  &  P.  418  79  (1839)  ;  s.c.  38  Eng.  C.  L.  58;  Rex 
(1838) ;  s.c.  34  Eng.  C.  L.  813.  v.  Russell,  1  Moo.  C.  C.  356  (1832). 

2  See  Reg.  v.  Alison,  8  Car.  &  P.  "  State  v.  Moore,  25  Iowa,  128 
418  (1838);  s.c.  34  Eng.  C.  L.  813;  (1868);  Smith  v.  State,  33  Me.  48 
Rex  r.  Hughes,  5  Car.  &  P.  126(1832);  (1851);  Commonwealth  v.  Jackson, 
s.c.  24  Eng.  C.  L.  486;  Rex  v.  Dyson,  81  Mass.  (15  Gray)  187  (1860)  ;  Com- 
Russ.  &  Ry.  523  (1823)  ;  1  East  P.  C.  monwealth  v.  Keeper  of  Prison,  2 
228, 229.  Ashm.    (Pa.)    227     (1838)  ;    Reg.    v. 

3Statei;.Ludwig,70Mo.412(1879).  Gaylor,  7  Cox  C.  C.  253  (1857);  s.c. 

4  Mo.  Rev.  St.  §  129.  Dears.  &  B.  C  C.  288. 
^  See  Commonwealth  v.  Bowen,  13 


58  HOMICIDE.  [chap.  IV. 

injury  would  not  be  likely  to  result ;  ^  and  when  the  woman 
dies  from  negligence  in  the  operation,  the  offence  will  be 
nianslauo-hter.^  But  if  the  medicine  is  administered  with 
"intent  to  kill  or  greatly  injure,  and  the  woman  dies,  it  will 
be  murder.^  The  consent  of  the  woman  to  the  operation  is 
no  defence.* 

Sec.  56.  Same  —  Causing  pregnant  woman  to  take 
poison.  —  In  Rex  v.  Russell^  the  defendant  was  tried  on  an 
indictment  which  charged  a  woman  with  murdering  herself 
with  arsenic,  and  the  defendant  with  inciting  her  to  com- 
mit the  said  murder.  It  appeared  that  the  woman,  who  was 
about  four  months  advanced  in  pregnancy,  but  not  quick 
with  cliild,  died  from  taking  arsenic  which  she  had  received 
from  the  defendant  for  the  purpose  of  procuring  a  miscarriage, 
and  that  she  knowingly  took  it  in  the  absence  of  the  defendant 
with  intent  to  procure  a  miscarriage.  It  was  objected  on  the 
trial  that  there  was  no  evidence  to  prove  that  she  was/^'^o  de 
se  ;  that  the  statute  of  9  Geo.  4,  c.  31,  §  13,  did  not  apply  to  a 
woman  administering  poison  to  herself,  and  that  assuming  her 
to  have  taken  arsenic  knowingly  and  with  intent  to  procure  a 
miscarriage,  she  was  not  guilty  of  any  offence,  and,  conse- 
quently, that  if  there  was  no  principal  there  could  be  no  ac- 
cessory, and  the  defendant  could  not  be  punished ;  also  that 
the  statute  of  7  Geo,  4,  c.  64,  §  9,  did  not  apply  to  the  case  of 
a  principal  who  was/e?o  de  se.  But  the  court  held  that  she 
was  felo  de  se  and  that  the  defendant  was  an  accessory  before 
the  fact. 

1  Reg.  V.  Gaylor,  7  Cox  C.  C.  253  363  (1874)  ;  Commonwoalth  v.  Blair, 

(1857)  ;  Dears.  &  B.  C.  C.  288.     See  123  Mass.  242  (1877)  ;  Commonwealth 

Smith  V.  State,  33  Me.  48  (1851).  v.  Brown,  121  Mass.  6!)  (1870)  ;  People 

Under  some  statutes,  if  tlie  woman  v.   Olmstead,   30    Mich.   431    (1874); 

is  killed  in  the  attempt  to  produce  an  State  v.  Glass,    5    Oreg.    73    (1873)  ; 

abortion,  and  it  api)ears  that  the  do-  Keg.    v.   Gaylor,    7    Cox    C.    C.    253 

sign  of  the  operator  was  not  to  take  (1857)  ;  s.c.  Dears.  &  B.  C.  C.  288. 

the  life  of  tlie  mother,  the  offence  is  3  Smith  v.  State,  33  Me.  48  (1851); 

murder   in    the   second    degree.     See  Commonwealth  v.  Keeper  of  Prison, 

State  V.  Moore,  25  Iowa,  128  (1808)  ;  2  Ashm.  (Pa.)  227  (1838). 

Commonwealth  v.  Jackson,  81  Mass.  •*  See  post,  §  59. 

(15  Gray)  187  (1800)  ;  also  Common-  ^  1   Moo.   C.   C.   350    (1832).     See 

wealth  V.  Keeper  of  Prison,  2  Aslim.  Beg.  r.  Leddington,  0  Car.  &  P.   79 

(Pa.)  227  (1838).  (1830);  s.c.  38  Eng.  C.  L.  5-8;   per 

2Yundt    V.    People,    05     III.    372  Alderson,  B. 
(1872).     See  Willey  v.  State,  40  Ind. 


SEC.  57.]  SUICIDE.  69 

Sec.  57.  Same  —  Supplying  drugs  to  pregnant  woman 
without  causing  lier  to  take  them.  —  It  is  thought  that, 
in  the  absence  of  a  statute  making  it  a  felony  for  any  woman 
to  take  poison  to  procure  an  abortion,  one  who  supplies  drugs 
to  a  pregnant  woman,  but  does  not  cause  her  to  take  them, 
is  not  accessory  to  the  abortion.  Thus  in  Reg.  v.  Fretwell,i 
which  was  a  trial  for  murder,  it  ap[)eared  that  the  deceased 
had  died  from  the  effects  of  corrosive  sublimate  taken  to 
procure  abortion.  She  had  endeavored  to  purchase  corrosive 
sublimate  herself,  but  the  druggist  having  refused  to  furnish 
it  to  her,  she  had  urged  the  prisoner  to  procure  it,  which 
he  did  with  the  full  knowledge  of  the  purpose  to  which  it 
was  to  be  applied ;  but  there  was  ground  for  believing  that 
the  prisoner,  in  procuring  the  poison,  had  acted  under  the 
influence  of  threats  by  the  deceased  of  self-destruction  if  the 
means  of  procuring  abortion  were  not  supplied  to  her.  She 
was  a  married  woman,  living  separately  from  her  husband, 
and  pregnant  by  the  prisoner.  The  jury  expressly  negatived 
the  fact  of  the  prisoner  having  administered  the  poison  to, 
or  caused  it  to  be  taken  by,  the  deceased.  They  found  that 
the  prisoner  procured  the  poison,  and  delivered  it  to  the 
deceased,  with  knowledge  of  the  purpose  to  which  she  in- 
tended to  apply  it,  and  that  he  was,  therefore,  accessory 
before  the  fact  of  her  taking  poison  to  procure  abortion. 
Cockburn,  C.  J.,  thereupon,  on  the  authority  of  Rex  v.  Rus- 
sell,2  directed  the  jury  to  return  a  verdict  of  guilty ;  but  it 
appearing  doubtful  to  him  how  far  the  ruling  in  that  case  to 
the  effect  that  if  poison  be  t&ken  by  a  woman  to  procure 
abortion,  and  death  ensues,  she  is  felo  de  se,  could  be  upheld  : 
and  still  more  so,  how  far  a  man,  accessory  to  the  misde- 
meanor of  a  woman  taking  poison  to  procure  abortion,  can 
be  held  to  be  accessory  to  her  self-murder,  if,  contrary  to  the 
intention  of  the  parties,  death  should  be  the  consequence, 
his  lordship  reserved  these  points.  The  higher  court  held 
that  the  conviction  was  wrong,  and  that  there  was  a  very 
marked  distinction  between  the  two  cases.  In  the  one  the 
prisoner  persuaded  the  woman  to  take  the  arsenic  ;  in  the  other 
the  prisoner  was  unwilling  that  the  Avoman  should  take  the 
poison.  The  facts  of  the  case  were  quite  consistent  with  the 
1  1  Leigh  &  C.  161  (1862).  ^  i  Moo.  C.  C.  356  (1832)  ;  supra,  §  56. 


60 


HOMICIDE. 


[chap.  IV. 


supposition  that  he  hoped  and  expected  that  she  Avould 
change  her  mind,  and  woukl  not  resort  to  it.  The  cases 
being  distinguishable,  the  court  felt  that  it  was  unnecessary 
to  decide  whether  the  woman  wnsfelo  de  se.'^ 

Sec.  58.  Attempts  to  commit  suicide. —  It  is  thought 
that  under  the  common  law,  an  attempt  to  commit  suicide  is 
punishable  as  a  misdemeanor.^  But  in  Reg.  v.  Leddington,^ 
where  the  defendant  was  cliarged  with  inciting  a  man  to 
commit  suicide,  Baron  Alderson  directed  an  acquittal,  saying: 
"  This  is  a  case  which  the  law  cannot  try."  In  this  country, 
however,  it  is  thought  that  an  attempt  to  commit  suicide  is 
not  a  punishable  offence.*  The  ground  upon  which  this  con- 
clusion is  based  is  a  well-established  rule  for  the  construc- 
tion of  statutes,  to  the  effect  that  the  common  law  is  held  to 
be  repealed  by  implication  where  the  whole  subject  has  been 
revised  by  legislation.^ 

Sec.  59.  Consent  of  deceased.  —  No  consent  can  be  given 
which  will  deprive  the  consenter  of   any  inalienable  right.^ 


1  By  the  24  &  25  Vict.,  c.  100,  §  58, 
any  woman  taking  poison  to  procure 
a.bortion  is  guilty  of  felonj',  whicli 
materially  alters  the  character  of  such 
cases  for  the  future,  and  the  difficulty 
as  to  the  trial  of  the  accessory  is  got 
rid  of  by  §  1  of  the  24  &  25  Vict., 
c.  94.  See  Keg.  v.  Gaylor,  1  Dears. 
&  B.  288  (1857). 

2  Commonwealth  v.  Mink,  123 
Mass.  422  (1877) ;  Reg.  v.  Burgess,* 
9  Co.x  C.  C.  247  (1802)  ;  s.c.  Leigh 
&  C.  258 ;  Reg.  v.  Doody,  G  Cox  C.  C. 
463  (1854). 

8  9  Car.  &  P.  79  (18-39);  s.c.  38 
Eng.  C.  L.  5-8.  See  Reg.  v.  Burgess, 
9  Cox  C.  C.  247  (18(52)  ;  s.c.  Leigh 
&  C.  258;  Rex  v.  Aiisee,  2  Am.  L. 
Rev.  794  (1808). 

*  Commonwealth  v.  Mink,  123  Mass. 
422  (1877)  ;  Commonwealth  v.  Dennis, 
105  Mass.  102  (1870). 

^  Commonwealth  »•.  Deimis,  105 
Mass.  02  (1870).  See  Lakin  v.  Lakin, 
84  Mass.  (2  Allen)  45  (1801);  Com- 
monwealth V.  Marshall,  28  Mass.  (11 
Pick.)    350    (1831)  ;    Commonwealth 


V.   Cooley,    27    Mass.    (10    Pick.)    37 
(1830). 

^  A  remarkable  illustration  of  this 
principle  in  Pennsylvania  is  furnished 
by  the  case  of  Smith  v.  Commonwealth, 
14  Serg.  &  R.  (Pa.)  70  (1820),  wherein 
it  was  held  that  an  agreement  not  to 
bring  a  writ  of  error  in  a  criminal 
case,  especially  one  of  high  degree, 
does  not  estop  the  defendant  from 
bringing  such  writ.  The  question 
arose  after  a  conviction  of  burglary, 
where  it  was  alleged  that  the  defend- 
ant had  agreed  in  writing  not  to 
bring  a  writ  of  error,  but  error  was 
brought  and  a  motion  to  quash  the 
writ  on  the  ground  of  the  agreement 
was  made.  In  refusing  the  motion  the 
court  said:  "  Wliat  consideration  can 
a  man  have  received,  adecjuate  to  im- 
])risonment  at  hard  labor  for  life?  It 
is  going  but  one  step  further  to  make 
an  agreement  to  be  hanged.  I  presume 
no  one  would  be  hardy  enough  to  ask 
the  court  to  enforce  such  an  agree- 
ment, yet  the  ])rincipal  is,  in  both 
cases,  the  same." 


SEC.  60.] 


SUICIDE. 


61 


Neither  can  any  consent  cancel  a  public  law.^  Hence  the 
consent  of  deceased  to  the  killing  is  no  bar  to  a  prosecution 
for  homicide,^  even  where  no  malice  exists.^  And  where 
one  takes  the  life  of  another  at  his  request,  he  is  guilty  of 
murder.'* 

Sec.  60.  Punisliinent  for  .suicide.  —  In  England  at  one 
time  the  punishment  for  the  crime  of  suicide  was  an  igno- 
minious burial  in  the  highway  without  Christian  rights,  with 
a  stake  driven  through  the  body,^  and  the  vicarious  punish- 
ment of  his  friends  by  the  forfeiture  of  all  his  goods  and  chat- 
tels to  the  crown.  But  some  years  ago  the  law  was  altered, 
so  that  now  the  only  consequence  following  an  act  of  self- 
destruction  being  the  denial  of  Christian  burial,  the  felo  de  se 
being  buried  in  the  churchyard  or  other  burying-ground, 
within  twenty-four  hours  after  the  inquest,  betvi^een  the 
hours  of  nine  and  twelve  at  night.*'  The  ignominious  burial 
in  the  highway  is  not  only  prohibited,  but  the  interment  of 


1  Eeg.  V.  Sinclair,  13  Cox  C.  C.  28 
(1880)  ;  Keg.  v.  Bennett,  4  Fost.  &  F. 
1105  (1866). 

-  Coniiiionwealth  v.  Parker,  50 
Mass.  (9  Mete.)  26:}  (1845).  See  State 
V.  Monlecai,  68  N.  C.  207  (1873); 
State  V.  Johnson,  Pliill.  (N.  C.)  186 
(1867)  ;  Ducher  v.  State,  18  Ohio,  308 
(1849)  ;  Johnston  v.  Commonwealth, 
85  Pa.  St.  54  (1877)  ;  RoUand  v.  Com- 
monwealth, 82  Pa.  St.  306  (1876). 

3  Commonwealth  v.  Parker,  50 
Mass.    (9   Mete.)   263    (1845). 

4  Rex  V.  Hughes,  5  Car.  &  P.  126 
(1832)  ;  s.c.  24  Eng.  C.  L.  486.  See 
Keg.  V.  Alison,  8  Car.  &  P.  418  (1838)  ; 
s.c.  34  Eng.  C.  L.  813;  Reg.  v.  Fret- 
well,  9  Cox  C.  C.  152  (1862)  ;  s.c. 
Leigh  &  C.  161 ;  Rex  v.  Russell,  1 
Moo.  C.  C.  356  (1832). 

^  There  is  no  known  legal  authority 
for  this  custom,  of  burying  suicides  at 
cross  roads  with  a  stake  driven  through 
their  body  ;  it  is  not  mentioned  by  any 
of  the  early  authors,  nor  does  Black- 
stone  refer  to  it.  Stephen  says  that 
"probably,  like  the  custom  of  gib- 
beting, which  certainly  existed  long 
before  the  statute  25  Geo.  2,  c,  37,  it 


originated,  without  any  legal  warrant, 
in  circumstances  now  forgotten.  It 
was,  however,  abolished  in  1823  by  4 
Geo.  4,  c.  52,  which  enacted  that  hence- 
forth it  should  not  be  lawful  for  any 
coroner  to  issue  his  warrant  for  the 
interment  of  a  felo  de  se  '  in  any  pub- 
lic highway.'  He  was  to  order  the 
body  to  be  privately  buried  in  a  church- 
yard, or  other  burial  ground,  'without 
any  stake  being  driven  through  the 
body,'  between  nine  and  twelve  at 
night,  and  without  any  religious  rites. 
This  has  been  further  altered  by  45  & 
46  Vict.,  c.  19,  passed  in  1882,  which 
provides  that  the  body  of  a  suicide 
may  be  buried  in  any  way  authorized 
by  43  &  44  Vict.,  c.  41,  that  is,  either 
silently  or  with  such  Christian  and 
orderly  religious  service  at  the  grave 
as  the  person  having  charge  of  the 
body  thinks  fit.  The  act  is  so  worded, 
as  to  lead  any  ordinary  reader  to  sup- 
pose that  till  it  passed  suicides  were 
buried  at  a  cross  road  with  a  stake 
through  their  bodies."  3  Hist.  Cr.  L. 
105. 

6  4  Geo.  4,  c.  52  §  1.     See  3  Steph. 
Hist.  Cr.  L.  105. 


62 


HOMICIDE. 


[chap.  IV. 


such  a  person  may  be  made  in  any  manner  authorized  by  the 
English  Burial  Laws  Amendment  Act  of  1880.^ 

In  Bracton's  time  a  person  who  committed  suicide  in  order 
to  avoid  a  conviction  for  a  crime  forfeited  his  lands.^  Other 
suicides  simply  forfeited  their  goods.  This  distinction,  how- 
ever, was  forgotten  before  the  time  of  Staundiforde.'^  The 
law  in  other  respects  remained  unaltered  until  the  year  1870, 
when  all  felonies  were  abolished.* 

In  the  United  States  there  is  no  punishment  for  suicide. 
The  constitutions  of  New  Hampshire,  Pennsylvania,  and  Ver- 
mont declare  that  estates  of  suicides  are  not  forfeited ;  those 
of  Colorado,  Delaware,  Kentucky,  Missouri,  New  Hampshire, 
Pennsylvania,  Tennessee,  Texas,  and  Vermont  declare  that 
such  estates  shall  descend  as  in  cases  of  natural  death.  In 
many,  if  not  all,  the  states,  statutes  have  been  passed  regard- 
ing suicides  and  assisting  a  would-be  suicide ;  ^  but  the  laws 
in  this  country  against  suicide  may  be  termed  dead-letter  laws, 
as  are  also  those  punishing  attempts  at  suicide.*^     The  reason 


1  45  &  40  Vic,  c.  19,  §§  2,  3. 

'^ "  Si  quis  reus  fuerit  alicujus 
criminis,  ita  quod  captus  fuerit  pro 
morte  hominis  vel  cum  furto  mani- 
festo, et  cum  utlagatus  fuerit,  vel  in 
aliquo  scelere  et  nialeficio  deprehen- 
sus  et  metu  criminis  imminentis  mor- 
tem ibi  coiisciverit  hsredem  non 
habebit.  Si  quis  autem  tajdio  vitae 
vel  impatientia  duloris  alicujus  seip- 
sum  interfecerit,  nunquani  liabere 
poterit,  et  talis  non  amittit  liasredita- 
tem  sed  tantum  bona  ejus  mobilia 
confiscentur."     Bracton  II.,  50fl. 

8  Staundiforde,  19  D.  See  also 
Lambard,  p.  247 ;  o  Co.  Inst.  54  ;  1 
HaleP.  C.411. 

*  33  &  34  Vict.,  c.  23.  "  Suicide 
may  be  wicked,  and  is  certainly  inju- 
rious to  society,  but  it  is  so  in  a  much 
less  degree  thrfii  murder.  The  injury 
to  the  person  killed  can  neither  be 
estimated  nor  taken  into  account. 
Tiie  injury  to  survivors  is  generally 
small.  It  is  a  crime  which  prochices 
no  alarm,  and  which  cannot  be  re- 
peated. It  would,  therefore,  be  better 
to  cease  altogetlier  to  regard  it  as  a 
crime,  and   to   provide  tiiat  any  one 


who  attempted  to  kill  himself,  or  who 
assisted  any  other  person  to  do  so, 
should  be  liable  to  secondary  punish- 
ment."    Fitz.  St.  121. 

^  See  Ark.  Rev.  Sts.,  c.  44,  div.  3, 
art.  2,  §  4  ;  Cal.  Ten.  Code,  §  400 ; 
Dak.  Comp.  L.  1887,  §§  0435,  0430  ; 
Kan.  Comp.  L.,  c.  31,  §  13,  p.  326; 
Minn.  Pen.  Code,  §  147  ;  Gen.  Sts.,  c. 
94;  Mo.  Kev.  Sts.  §  1239;  N.  Y.  Pen, 
Code,  §§  172-178;  Oreg.  Codes  & 
Gen.  L.  §§  17,  20,  p.  892. 

•J  Irving  Browne  says  in  the  40  Al- 
bany Law  Journal,  p.  22  :  "  We  have 
never  heard  of  a  single  instance  of  an 
enforcement  of  the  provi.«ion  of  the 
Penal  Code  of  this  state  (New  York). 
Public  opinion  seems  to  be  in  tlie  way. 
People  generalh-  seem  to  think  —  and 
we  do  not  know  that  they  are  far 
wrong — that  suicide  argues  either 
insanity  or  a  mind  so  distracted  by 
misfortune,  disease,  or  unhappiness, 
as  to  make  the  offender  an  object 
rather  of  pity  than  of  punishment. 
No  one  in  a  healthy  state  of  mind 
and  body  ever  voluntarily  '  left  the 
warm  precincts  of  the  cheerful  day.' 
Some  of  the  wisest  and  best  men  in 


SEC.  60.]  SUICIDE.  63 

seems  to  be  because  the  sentiments  of  humanity  are  against 
them  ;  and  it  may  be  said  to  be  almost  universally  true  that 
those  laws  which  contravene  the  opinions  of  mankind  gener- 
ally and  the  sentiments  of  humanity  are  not  enforceable. 

ancient  and  modern  times  have  taken  who  set  about  it  always  mean  to  suc- 
their  own  lives;  for  example,  Sir  ceed.  If  it  has  any  effect  whatever, 
Samuel  Koniilly  and  Hugh  Miller,  it  is  to  make  suicidal  attempts  effect- 
It  is,  in  our  opinion,  a  proof  of  tlie  ual.  It  perhaps  does  not  do  any  hurt, 
tenderness  of  human  judgment  that  hut  we  cannot  see  that  it  does  any 
this  law  cannot  he  enforced.  It  does  good." 
not  tend  to  diminish  suicides,  for  those 


CHAPTER   V. 

MURDER. 

Sec.  61.  Definition. 

Sec.  62.  Premeditated  design. 

Sec.  63.  In  federal  jurisdiction  —  What  killing  is  murder. 

Sec.  64.  In  tlie  king's  peace. 

Sec.  65.  Killing   with   specific   malicious   intent  —  Requisite   of   malice  — 
Nature  of  tlie  intent. 

Sec.  66.  Same  —  Express  malice. 

Sec.  67.  Same  —  Wilful  and  negligent  omission  of  duty. 

Sec.  68.  Deliberation  and  cooling  time. 

Sec.  69.  Same  —  Sufficiency  of  time  —  Question  for  jury. 

Sec.  70.  Same  —  Scope  and  object  of  inquiry. 

Sec.  71.  Same  —  Adequate  cooling  time. 

Sec.  72,  Same  —  What  sufficient  deliberation. 

Sec.  73.  Inadequate  cooling  time. 

Sec.  74.  Same  —  Passion  after  intent  formed. 

Sec.  75.  Same  —  Pretence  of  fighting. 

Sec.  76.  Same  —  Feigned  reconciliation. 

Sec.  77.  Malice  implied  by  act  of  killing. 

Sec.  78.  Same  —  Interfering  between  combatants. 

Sec.  79.  Same  —  Antecedent  quarrel  —  Presumption  therefrom  as  to  malice. 

Sec.  80.  Same  —  Anarchists'  case  —  Manufacture  of  dynamite  bombs. 

Sec.  81.  Same  —  Rule  in  Colorado  and  Louisiana. 

Sec.  82.  Same  —  From  means  used  —  Deadly  weapon. 

Sec.  83.  Same  —  What  weapons  are  deadly. 

Sec.  84.  Same  —  Would  not  justify  use  of  deadly  weapon. 

Sec.  85.  Same  —  Means   calculated    to  produce   death   under  peculiar  cir- 
cumstances. 

Sec.  86.  Same  —  By  administering  poison. 

Sec.  87.  Same  —  Sliown  by  surrounding  circumstances. 

Sec.  88.  Same  —  Quarrel  —  Retreat  and  pursuit. 

Sec.  89.  Same  —  Prearranged  quarrel  —  Mutual  malice. 

Sec.  90.  Same  —  Renewal  of  controversy. 

Sec.  91,  Same  —  Assault  by  one  of  the  slayers. 

Sec.  92.  Same  —  Cruel  or  inliuman  treatment. 

Sec.  93.  Same  —  Revenge  for  assault  upon  defendant's  son. 

Sec.  94.  Same  —  Killing  wife's  paramour. 

Sec.  95.  Same  —  Mutual  combat. 
64 


SEC.  61.]  MURDER.  65 

Sec.     90.  Same  —  Killing  after  proposal  of  combat. 

Sec.    97.  Same  —  Malice  presumed  to  continue  —  Provocation. 

Sec.     98.  Killing  officer  in  discharge  of  duty. 

Sec.     99.  Killing  one  person  in  attempt  to  kill  another. 

Seo.  100.  Homicide  while  committing  felony. 

Sec.  101.  Homicide  by  gross  misconduct  or  negligence. 

Sec.  102.  Degrees  of  murder  distinguished. 

Sec.  103.  Same  —  First  degree. 

Sec.  lOi.  Same  —  Illustrations. 

Sec.  105.  Same  —  Second  degree. 

Sec.  10(i.  Same  —  Illustrations. 

Sec.  107.  Same  —  Other  degrees. 

Sec.  108.  Principals  and  accessories  —  General  rules  as  to  principals. 

Sec.  109.  Same  —  Principals  in  tlie  first  degree. 

Sec.  110.  Same  —  Principals  in  the  second  degree. 

Sec.  111.  Same  —  Conspirators. 

Sec.  112.  Same  —  The  Anarchists' case. 

Sec.  113,  Same  —  Persons  giving  aid  or  advice. 

Sec.  114.  Same  —  Accessories  before  the  fact. 

Sec.  115.  Same  —  Accessories  after  the  fact. 

Sec.  61.  Definition.  —  Murder  is  unlawful  homicide  with 
malice  aforethought.^  At  common  law  it  is  defined  as  the 
unlawful  killing,  by  a  person  of  sound  mind  and  discretion, 
of  any  reasonable  creature  in  being  and  under  the  king's 
peace,  with  malice  aforethought,  either  express  or  implied  by 
law.2  In  the  United  States  the  offence  is  generally  defined 
as  the  wilful  killing  of  a  human  being  in  the  peace  of  the 
state,  or  of  the  people,  with  malice  aforethought,  either  ex- 
press or  implied.^ 


1  See    Desty   Am.    Cr.    L.   §129;  pie,  1   Col.  137  (1869);  Bohannon  y. 

Stephen's  Cr.  L.  Art.  225.  Commonwealth,    8    Bush     (Ky.)    481 

24  Bl.  Comm.  195;  2  Chit.  Cr.  L.  (1871)  ;    Commonwealth  v.  York,  40 

724;    3  Co.  Inst.  47;     Harris'  Cr.  L.  Mass.   (9  Mete.)  93  (1845);   Common- 

(3d  ed.)   164.     See  Perry  v.  State,  43  loealth  v.  Webster,  50  Mass.  (5  Cush.) 

Ala.  21  (1869)  ;  People  v.  Doyell,  48  295  (1850)  ;  State  v.  Zellers,  6  N.  J. 

Cal.  85  (1874)  ;  People  v.  Martin,  47  Eq.    (2  Halst.)  220    (1824)  ;    United 

Cal.  102  (1873)  ;  People  v.  Haun,  44  States  v.  Magill,  1   Wash.   C.  C.   463 

Cal.    96    (1872);    People    v.    Cronin,  (1806)  ;  Desty  Cr.  L.  §  129a;  1  Hale, 

34  Cal.  200  (1867)  ;   People  v.  Pool,  P.  C.  424  ;  1  kawk.  P.  C,  c.  31,  §  3  ; 

27  Cal.  572  (1865)  ;  People  v.  Belen-  Post.  256  ;  2  Ld.  Raym.  1487 ;  1  Russ. 

cia,   21    Cal.    544    (1863);    People  v.  on  Cr.  (5th  Eng.  ed.)  641;    Washb. 

Steventon,  9  Cal.  273  (1858)  ;  People  Cr.  L.  74. 

V.  Moore,  8  Cal.  90  (1857)  ;  People  v.  »  See   People   v.    Aro,  6   Cal.    207 

Gill,  6  Cal.  637  (1856)  ;  Smith  v.  Peo-  (1856)  ;    Spies  v.  People,   122   111.   1 

5 


66 


HOMICIDE. 


[chap.  V. 


Sec.  62.  Premeditated  design.^  —  The  phrase  "premedi- 
tated design,"  used  in  the  statute  of  Mississippi  in  its  definition 
of  murder,  is  the  same,  in  its  legal  effect,  as  are  the  words 
"  malice  aforethought,"  in  the  common  law  definition.^ 

Sec.  63.  In  federal  jurisdiction  —  What  killing  is  mur- 
der. —  The  Revised  Statutes  of  the  United  States  ^  provide 
that  "  every  person  who  commits  murder  within  any  fort  .  .  . 
under  tlie  exclusive  jurisdiction  of  the  United  States  .  .  .  shall 
suffer  death."  But  this  statute  does  not  define  the  offence  of 
murder ;  consequently  the  common  law,  as  interpreted  in  our 
courts,  governs,  and  murder  is  where  a  person  of  sound 
memory  and  discretion  unlawfully  and  feloniously  kills  any 
human  being  in  the  peace  of  the  sovereign,  with  malice  pre- 
pense or  aforethought,  express  or  implied.'^ 

Sec.  64.  "  in  the  king's  peace."  —  The  term  "  in  the  king's 
peace,"  or  "  in  the  peace  of  the  state,"  or  "  of  the  sovereign," 
or  "  of  the  people,"  refers  exclusively  to  the  state  and  condi- 
tion of  the  person  killed,  and  a  person  not  in  a  state  of  actual 
war  against  a  state  or  sovereign,  whether  an  alien  enemy  or  a 
traitor  in  arms,  is  within  its  meaning;^  therefore,  the  killing, 
even  in  time  of  war,  of  an  enemy's  subject  not  in  arms,  pris- 
oners of  war,  persons  with  safe  conduct,  or  deserters,  is  un- 
lawful, and,  if  with  malice  aforethought,  is  murder.^ 

Blackstone  says :  "  The  person  killed  must  b3  a  reasonable 
creature  in  being  and  under  the  king's  peace  at  the  time  of 


(1887)  ;  s.c.  3  Am.  St.  Kep.  320 ;  9 
Cr.  L.  Mag.  829  ;  ti  Am.  Cr.  Hep.  570; 
12  N.  E.  Uep.  86.3  ;  United  States  v. 
King,  .•34  Fed.  Hep.  302  (1888). 

Tiie  distinction  between  murder 
and  nianslaugliter  is  not  iiltered  hy 
the  statute  of  Arlcai\sas,  nor  is  the 
nature  or  definition  of  murder,  both 
remaining;  iis  at  common  law.  Bivens 
V.  State,  U  Ark.  455  (1850). 

In  Louisiana  tlie  definition  of  tlie 
offence  of  murder  ns  known  under 
tlie  common  law  of  England,  is  the 
true  definition  of  wilful  murder,  the 
punishnu-nt  of  which  is  provided  for 
by  the  act  of  the  legislature  of  1855, 
§  1,  relative  to  crimes  and  offences. 
State  1-.  Mullen,  14  La.  An.  577  (1859). 


1  See  pn<<f.  Deliberation  and  Cool- 
ing Time,  §  ()8. 

■^  McDaniel  v.  State,  1(5  Miss.  (8 
Smed.  &M.)  401  (1817). 

3  U.  S.  Hev.  Sts.  §  5339. 

*  United  States  v.  King,  34  Fed. 
Kep.  302  (1888). 

"  See  State  v.  Gut,  13  Minn.  341 
(1808)  ;  People  v.  McLeod,  1  Hill 
(N.  Y.)  377  (1841)  ;  State  v.  Dunkley, 
3  Irod.  (N.  C.)  L.  110  (1842);  4  Bl. 
Comm.  198;  3  Co.  Inst.  50;  1  Hale 
P.  C.  433  ;   Wharf.  Confl.  of  L.  911. 

0  State  v.  Gut,  13  Minn.  341  (1868); 
People  V.  McLeod,  1  Hill  (N.  Y.) 
377  (1841). 


SEC.  65.]  MURDER.  67 

the  killing.  Therefore,  to  kill  an  alien,  a  Jew,  or  an  outlaw, 
who  are  all  under  the  king's  peace  and  protection,  is  as  much 
murder  as  to  kill  the  most  regular  born  Englishman,  except 
he  be  an  alien  enemy  in  time  of  war."  ^ 

Sec.  65.  Killing'  with  specific  malicious  intent  —  Requi- 
site of  malice  —  Nature  of  the  intent.  —  Malice  is  an  essen- 
tial element  in  the  crime  of  murder,  either  at  common  law  or 
under  the  statutes.  But  the  term,  in  and  of  itself,  is  not 
necessarily  confined  to  a  specific  intention  to  take  the  life  of 
the  person  killed,  but  it  may  include  an  intention  to  do  an 
unlawful  act,  the  result  of  which  will  probably  be  to  deprive 
another  person  of  life.^  As  a  general  rule,  however,  and  in 
most  cases,  a  specific,  deliberately  formed  intention  unlawfully 
to  take  life,  either  as  expressly  shown  by  the  evidence,  or  as 
implied  by  law,  is  a  constituent  element  of  the  crime  of 
murder ;  and  this  intent  is  commonly  spoken  of  as  "  malice 
aforethought,"  or  "  malice  prepense."  ^  To  constitute  this 
malice  there  is  no  necessity  of  any  ill-will,  spite,  or  hatred 
towards  the  deceased  personally ;  *  but  the  term  may  be  de- 
fined as  that  condition  of  the  mind  which  shows  "  the  heart 
regardless  of  duty  and  fatally  bent  on  mischief"  toward 
another  person.^ 

1  4  Bl.  Comm.  197.  156  (1858)  ;  Ex  parte  Wray,  30  Miss. 

2  See  Lewis  v.  State,  72  Ga.  164  673  (1856)  ;  State  v.  Schoenwald,  31 
(1883);  s.c.  53  Am.  Rep.  835;  5  Am.  Mo.  147  (I860);  State  v.  Anderson, 
Cr.  Rep.  381;  Dozier  v.  State,  26  Ga.  2  Overt.  (Tenn.)  6  (1804). 

156    (1858)  ;    State    v.    Decklotts,    19  *  McAdams  v.  State,  25  Ark.  405 

Iowa,   447   (1865)  ;    State   v.    Walker,  (1869) ;    People    v.    Taylor,   36    Cal. 

77  Me.  488  (1885);  s.c.  7  Cr.  L.  Mag.  255    (1868);    Stiles   v.  State,  57   Ga. 

73;  5  Am.  Cr.  Rep.  465;  1  Alt.  Rep.  183   (1876);    Revel   v.   State,  26    Ga. 

357;  Wellar  v.  People,  30  Mich.   16  275    (1858);    StJite    v.    Decklotts,    19 

(1874)  ;  Ex  parte  Wray,  30  Miss.  673  Iowa,  447   (1865)  ;    State  v.  Hays,  23 

(1856)  ;  State  v.  Partlow,  90  Mo.  608  Mo.    287    (1856)  ;    Commonwealth    v. 

(1886);  s.c.  4  S.  W.  Rep.  14;   State  Drum,  58  Pa.  St.  9  (1868);  State  v. 

t'.  Jones,  79  Mo.  441  (1883);  State  v.  Douglass,    28    W.    Va.    297     (1886); 

Schoenwald,  31  Mo.  147  (1860)  ;  War-  United  States  v.  Ross,  1   Gall.  C.  C. 

ren   v.  State,  4    Coldw.    (Tenn.)    1.30  624(1813).     See  also  State  r.  Jarrott, 

(1-867)  ;  State  v.  Anderson,   2  Overt.  1  I  red.  (N.  C.)  L.  76  (1840). 
(Tenn.)    6    (1804).     Compare   People  &  state   v.    Chavis,    80    N.    C.   353 

r.  Austin,  1   Park.   Cr.   Cas.    (N.  Y.)  (1879)  ;  Commonwealth  v.  Drum,  58 

154  (1847)  ;  State  v.  Turner,  Wright  Pa.  St.  9  (1868)  ;  McKinney  v.  State, 

(Ohio)  30   (1831)  ;    In   re   Anderson,  8  Tex.   App.   626    (1880)  ;    Harris   v. 

11  Up.  Can.  C.  P.  62  (1861).  State,  8  Tex.   App.  90  (1880);    State 

3  See    Territory    v.   Egan,    3    Dak.  v.  Douglass,  28  W.  Va.  297  (1886). 
119  (1882);   Dozier  v.  State,  26  Ga. 


68 


HOMICIDE. 


[chap.  V. 


It  is  imperative  that  this  malice  exist  at  the  time  of  the 
homicide,  or  at  the  time  of  the  beginning  of  the  quarrel, 
scuffle,  or  affray,  during  which  the  killing  occurs ;  for,  if  the 
killing,  or  the  act  which  leads  to  it  or  causes  it,  be  not  com- 
mitted out  of  present  malice,  it  is  not  murder.^ 

Sec.  66.  Same  —  Express  malice.  —  Express  malice  is  de- 
fined as  "  where  one,  with  deliberate  mind  and  formed  design, 
doth  kill  another."  But  it  also  exists,  without  a  previous 
design  to  kill,  where  there  is  an  intent  to  do  an  unlawful  act, 
which  will  probably  deprive  another  of  life.^ 

Sec.  67.    Same — ^ Wilful  and  negligent  omission  of  dnty.-^ 

—  Where  death  ensues  in  consequence  of  the  wilful  omission 
of  a  duty  it  will  be  murder ;  if  it  ensues  in  consequence  of 
the  negligent  omission  of  a  duty  it  will  be  manslaughter.* 
Thus  where  a  sick  or  weak  person  is  exposed  to  the  cold 
with  intent  to  destroy  his  life,  this  may  amount  "to  wil- 
ful murder  under  the  rule  that  he  who  wilfully  and  delib- 
erately does  an  act  which  apparently  endangers  another's  life, 
and  thereby  occasions  his  death  shall,  unless  he  clearly  prove 
to  the  contraiy,  be  adjudged  to  kill  him  of  malice  prepense."^ 
And  the  death  of  a  child,  resulting  from  wilful  cruelty  and 
neglect  on  the  part  of  one  bound  to  maintain  and  care  for  it, 
is  murder  although  there  was  no  intent  to  kill.''  In  the  case 
of  Reg.  V.  Fenety,''  where  a  mother  was  charged  with  feloni- 
ously placing  a  child  of  tender  age,  and  unable  to  take  care 
of  itself,  upon  the  shore  of  a  river  in  an  exposed  situation, 
where  it  was  liable  to  fall  into  the  water,  and  abandoning  it 
there  with  the  intent  that  it  should  perish,  by  means  of  which 
exposure  the  child  fell  into  the  river  and  was  suffocated  and 


1  Clements  v.  State,  50  Ala.  117 
(1874);  Hill  t-.  People,  1  Col.  436 
(1872);  McMillan  v.  State,  35  Ga. 
54  (18GG) ;  Commonwealth  v.  Web- 
ster, 59  Mass.  (5  Cush.)  310  (1850); 
People  V.  Divine,  1  Edm.  Sel.  Cns. 
(N.  Y.)  594  (1848);  State  v.  Ander- 
son, 2  Overt.  (Tenn.)  0  (1804)  ;  Bris- 
tow  I'.  Commonwealth,  15  Gratt.  (Va.) 
034  (1859). 

2  Ex  jiarte  Wray,  30  Miss.  073 
(1850). 


^  See  post,  Gross  Misconduct  and 
Recklessness. 

4  Lewis  V.  State,  72  Ga.  104  (1883)  ; 
s.c.  53  Am.  Rep.  836;  5  Am.  Cr.  Rep. 
381;  Roscoe's  Cr.  Ev.  723.  But  see 
ante,  §  1,  last  paras^raph. 

^  Roscoe's  Cr.  Ev.  723. 

6  Lewis  V.  State,  72  Ga.  164  (1883) ; 
s.c.  53  Am.  Rep.  836;  5  Am.  Cr.  Rep. 
381. 

7  3  Allen  (N.  B.)  Rep.  132. 


SEC.   68.]  MUEDER.  69 

droAvned,  the  court  held  that  to  support  the  indictment  it 
was  necessary  to  prove  that  the  death  was  caused  by  drown- 
ing or  suffocation. 

Sec.  68.  Deliberation  and  cooling  tinie.^  —  If  a  homicide 
be  committed  under  the  influence  of  a  sudden  passion,  or  in 
hot  blood  produced  by  a  reasonable  and  adequate  cause,  and 
before  a  reasonable  time  has  elapsed  for  the  blood  to  cool  and 
reason  to  resume  its  control,  and  is  the  result  of  temporary 
excitement,  by  which  the  control  of  reason  was  disturbed, 
rather  than  of  any  wickedness  of  heart,  or  cruelty,  or  reck- 
lessness of  disposition,  the  law,  out  of  indulgence  to  the 
frailty  of  human  nature,  or  rather,  in  recognition  of  the  laws 
upon  which  human  nature  is  constituted,  very  properly  re- 
gards the  oifence  of  a  less  heinous  character  than  murder, 
and  gives  it  the  designation  of  manslaughter.^  In  such  a 
case  it  is  not  necessary  that  the  reason  should  be  entirely 
dethroned  or  overpowered  by  passion  so  as  to  destroy  an 
intelligent  volition  ;3  such  a  degree  of  mental  disturbance 
would  be  equivalent  to  utter  insanity,  and  if  the  result  of 
adequate  provocation,  would  render  the  perpetrator  morally 
insane.2  But  in  every  case  of  homicide,  no  matter  how  great 
the  provocation  may  have  been,  if  there  be  sufficient  time  for 
the  passions  to  subside  and  for  reason  to  resume  its  control, 
such  homicide  will  be  murder.* 

It  is  not  necessary  that  the  deliberate  intent  to  kill  should 
have  been  formed  for  any  specific  length  of  time  ;  it  is  enough 
that  it  exists  at  the  moment  of  the  killing,  if  it  was  deliber- 
ate :  that  is,  formed  when  the  mind  was  in  its  normal  state, 
under  the  control  of  the  slayer,  and  not  in  the  heat  of  passion 
caused  by  adequate  provocation.  A  predetermined  intention 
to  kill,  fixed  in  the  mind  after  mature  reflection,  is  not  neces- 
sary to  the  crime  of  murder.^ 

1  See  post,  §  126.  5  See  McKenzie  v.  State,  26  Ark. 

2  Mailer  v.  People,  10  Mich.  212  334  (1870) ;  McAdams  v.  State,  25 
(1802)  ;  s.c.  81  Am.  Dec.  781.  Ark.  405  (!869)  ;  Jones   i-.  State,  29 

3  Maher  v.  People,  10  Mich.  212  Ga.  594  (1800)  ;  Peri  i,-.  People,  65  111. 
(1862)  ;  s.c.  81  Am.  Dec.  781 ;  Young  17  (18"2)  ;  State  v.  Decklotts,  19  Iowa, 
V.  State,  11  Humph.  (Tenn.)  200  447  (1865) ;  Nicholas  i-.  Connnon- 
(1850)  ;  Hailc  y.  State,  1  Swan  (Tenn.)  wealth,  11  Bush  (Ky.)  575  (1875); 
248  (1851).                                               '  Leighton    v.    People,    88    N.    Y.    117 

4  1  East,  c.  5,  §  30.  (1882)  ;   s.c.   10  Abb.  (N.  Y.)  N.    C. 


70  HOMICIDE.  [chap.  V. 

Sec.  69.  Same  —  Sufficiency  of  time  —  Question  for  jury. 

—  There  is  a  conflict  of  opinion  as  to  whether  tlie  question 
of  the  sufficiency  of  the  cooling  time  is  one  for  the  court  or 
for  the  jury.  It  has  been  held  by  the  North  Carolina  courts 
that  it  is  a  question  for  the  court ;  ^  but  the  true  rule  is 
thought  to  be  that  it  is  a  question  for  the  jury.^ 

Sec.  70.  Same  —  Scope  and  object  of  inquiry.  —  For- 
merly it  was  held  that  the  immediate  object  of  the  inquiry 
must  be,  to  ascertain  whether  the  suspension  of  the  reason 
arose  from  sudden  passion,  continued  from  the  time  of  provo- 
cation received,  until  the  instant  in  which  the  fatal  blow 
was  given ;  ^  l)ut  it  is  now  held  that  the  question  to  be  de- 
cided is.  Was  there  time  for  a  reasonable  man  to  have  cooled 
between  the  provocation  and  the  killing?^  Where  sufficient 
time  has  elapsed  for  a  reasonable  person  to  have  cooled,  the 
homicide  will  not  be  reduced  to  manslaughter.^  The  supreme 
court  of  South  Carolina  say  in  the  case  of  State  v.  McCants,^ 
that  "  no  consideration  should  be  given  one,  who  remains  in 
apparently  undiminished  fury,  for  a  length  of  time  unreason- 
able under  the  circumstances,  for  by  lashing  himself  into 
greater  fury  by  outward  demonstrations  of  passion,  no  one 
should  obtain  upon  trial  any  advantage  over  another,  who 
in  like  circumstances,  should  in  reasonable  time  master  his 
passions,  or  at  least  cover  "with  a  calm  exterior  the  fires 
which  inwardly  consume  him." 


261;    People   v.   Clark,  7  N.  Y.  385  581  (1888);  s.c.  10  Or.  L.  Mag.  698; 

(1852);  Lanergan  V.  People,  50  Barb.  18  Pac.  Kep.  474;    Maher  v.  People, 

(N.  Y.)  260   (1867);   State  v.  Moore,  10  Mich.  212  (1862) ;  s.c.  81  Am.  Dec. 

69  N.  C.  267  (1873)  ;  s.c.  1  Green  Cr.  781 ;  Reg.  v.  Fisher,  8  Car.  &  P.  182 

Rep.   611;     Shoemaker   r.   State,   12  (1837)  ;  s.c.  34  Eng.  C.  L.  679. 

Ohio,  43   (1843)  ;    Commonwealth    v.  ^  Oneby's  Case,  2  Ld.  Raym.  1489 

Drum,  58  Pa.  St.  9  (1808)  ;  Kilpatriok  (1727). 

V.    Commonwealth,    31    Pa.    St.   198  *  State  v.  McCants,  1  Spcer  (S.  C.) 

(1858);  Ilerrin  v.  State,  33  Tex.  638  L.  384  (1843);  s.c.  Law.  Insan.  722; 

(1871) ;  Jordan  v.  State,  10  Tex.  479  Rex   v.   Hayward,   6   Car.    &  P.    157 

(1853);   State  v.   McDonnell,  32  Vt.  (1833);  s.c.  25  Eng.  C.  L.  371. 

491  (1800)  ;  United  States  v.  Cornell,  "  Smith  j;.  State,  49  Ga.  485  (1873); 

2  Mas.  C.  C.  91  (1820).  State  v.  Grayor,  89  Mo.  600  (1886)  ; 

1  State    V.    Moore,   69   N.   C   207  s.c.  1  S.  W.  Rep.  305. 

(1873);    State  v.  Sizemore,   7  Jones  «1   Speer  (S.  C.)    384  (1843);  s.c 

(N.  C.)  L.  206  (1859).  Law.  Insan.  722. 

2  See  State  v.  Yarborough,  39  Kan. 


SEC.  71.]  MURDER.  71 

Sec.  71.  Same — Adequate  cooling-  time.  —  No  time  can 
be  definitely  fixed  upon  in  which  the  passions  must  be  sup- 
posed to  have  cooled  in  every  individual,  because  the  passions 
in  some  persons  are  much  stronger  and  their  judgments  much 
weaker  than  others,  requiring  in  the  first  a  much  longer  time 
to  get  the  better  of  their  passions  than  in  the  latter.  The 
facts  of  the  case,  the  surrounding  circumstances,  the  negli- 
gence and  nature  of  the  accused,  the  acts  of  deliberation, 
must  all  be  taken  into  consideration  in  determining  whether 
the  violent  transport  of  passion  had  cooled.^  Generally 
speaking,  the  time  in  which  the  ordinary  man  placed  in  like 
circumstances,  would  have  cooled,  is  reasonable  and  adequate 
cooling  time.^ 

It  is  murder  in  the  hio-hest  desfree  in  those  cases  where 
there  has  been  time  for  the  mind  to  think  upon  the  matter, 
to  meditate  upon  the  act  of  killing,  and  then  determine  to  do 
or  not  to  do  it ;  ^  so  also  in  those  cases  where  there  has  been 
a  deliberate  determination  to  use  a  deadly  weapon  upon  a 
contingency  that  may  happen.* 

It  has  been  said  that  if  between  the  provocation  received 
and  the  mortal  blow  given  in  a  homicide,  the  prisoner  falls 
into  other  discourse  or  diversions  in  which  he  continues  for 
a  reasonable  time  for  cooling,  or  if  he  takes  up  and  pursues 
any  other  business  or  design  not  connected  with  the  imme- 
diate object  of  his  passion,  not  subservient  thereto,  and  it 
may  be  reasonably  supposed  that  his  intention  has  been 
once  called  off  from  the  subject  of  the  provocation,  the  homi- 
cide is  murder,  particularly  in  those  cases  where  a  deadly 
weapon  is  used.^ 


1  Territory  v.  Bannigan,  1  Dak.  450  111.  372  (1885)  ;  s.c.  5  Cr.  L.  Mag.  880  ; 
(1877) ;  Smith  v.  Sta^e,  49  Ga.  485  Leigliton  i-.  People,  88  N.  Y.  120 
(1873);    Maher  f.    People,    10   Mich.  (1882). 

212  (1862);    s.c.  81    Am.   Dec.    781;  •!  Chambers  ?•.  Falkner,  65  Ala.  448 

Oneby's    Case,    2    Ld.    Raym.    1485  (1880). 

(1727)  ;  1  East  P.  C.  251;  Post.  296.  ^  people    v.    Bush,    65     Cal.     129 

2  State  V.  McCaiits,  1  Speer  (S.  C.)  (1884)  ;  s.c.  5  Am.  Cr.  Rep.  459;  3 
L.  384  (1843);  s.c.  Law.  Insan.  722.  Pac.  Rep.   590;    State  v.  Sizemore,  7 

3  People  V.  Bush,  65  Cal.  129  Jones  (N.  C.)  L.  206  (1859)  ;  Com- 
(1884);  s.c.  5  Am.  Cr.  Rep.  459;  3  monwealth  r.  Green,  1  Ashm.  (Pa.) 
Pac.  Rep.  590  ;  Gladden  v.  State,  12  289  (1826)  ;  T\eg.  v.  Fisher,  8  Car.  & 
Fla.  563  (1869)  ;  Smith  v.  State,  49  P.  182  (1837)  ;  s.c.  34  Eng.  C.  L.  679. 
Ga.  482  (1873);  Leigh  v.  People,  113 


72  HOMICIDE.  [chap.  V. 

Sec.  72.  Same — What  sufficient  deliberation.  —  The  word 
deliberation  is  thought  to  signify  an  act  done  in  cold  blood 
and  not  in  a  sudden  passion  caused  by  a  reasonable  provoca- 
tion.i  A  transport  of  passion  should  not  be  taken  to  continue 
an  immoderate  length  of  time.^  The  question  whether  or 
not  there  was  deliberation  is  ordinarily  incapable  of  actual 
proof,  but  may  be  inferred  by  the  jury  from  the  circum- 
stances.^ It  has  been  said  that  an  act  is  done  with  delibera- 
tion, however  long  or  short  the  time  intervenes  after  the  intent 
is  formed  and  before  it  is  executed,  if  the  offender  has  an 
opportunity  to  recollect  the  offence.'^  Thus  where  a  prisoner 
who  has  killed  a  person  displayed  thought,  contrivance,  and 
design  in  the  mode  of  possessing  himself  of  the  weapon  used, 
or  disposing  of  it  immediately  after  the  blow  was  struck,  such 
exercise  of  contrivance  and  design  denotes  deliberation, — 
the  presence  of  judgment  and  reason  rather  than  violent  and 
ungovernable  passion.^  The  celerity  of  mental  action  is  such 
that  the  formation  of  a  definite  purpose  may  not  occupy  more 
than  a  moment  of  time ;  ^  hence  the  important  question  in 
such  a  case  is  to  determine  whether  the  external  facts  and 
circumstances  at  the  time  of  the  killing,  as  well  as  before  and 
after  that  time,  having  connection  with,  or  relation  to  it, 
furnish  satisfactory  evidence  of  the  existence  of  a  calm  and 
deliberate  mind  on  the  part  of  the  accused  at  the  time  the 
act  was  committed.  If  they  show  a  formed  design  to  take 
the  life  of  the  person  slain,  or  to  do  him  some  serious  bodily 
harm  which  in  its  necessary  or  probable  consequences  may 
end  in  his  death,  he  is  guilty  of  murder  in  the  highest  degree.'' 
Thus  it  has  been  said  that  where  a  man  in  killing  another 
adopts  some  artifice  in  order  to  make  it  appear  not  to  be  mur- 

1  People  V.  Crowey,  56  Cal.  36  s  gtate  v.  Yarborough,  ."9  Kan.  581 
(1880);  State  v.  Sneed,  91  Mo.  552  (1888);  s.c.  10  Cr.  L.  Mag.  699;  18 
(1887)  ;  s.c.  4  S.  W.  Rep.  411 ;  State  I'ac.  Kep.  474  ;  Kcx  i-.  Haywanl,  6  Car. 
V.  Melton,  G7  Mo.  594  (1878).  &  P.  157   (1833);  .?.c.  25  Eng.  C.  L. 

2  Oneby's  Case,  2  Ld.  Raym.  1485  371. 

(1727).  c  Stater.  Dunn,  18  Mo.  424  (1853); 

8  People  V.  Mnjone,  91  N.  Y.  211  People  r.  Van  Brunt,  108  N.  Y.  656 

(1883)  ;  s.c.  16  N.  Y.  Wk.  Dig.  199;  (1888). 

1  N.  Y.  Cr.  Rep.  94 ;  affirming  12  Abb.  "  McCoy  ;•.  State,  25  Tex.  33  (1860); 

(N.  Y.)  N.  C.  187.  s.c.  78  Am.  Dec.  520. 

•♦  Fost.  296 ;  Hale  P.  C.  486 ;  2  Keb. 
19. 


SEC.  73.]  MURDER.  73 

der,  that  such  artifice  is  of  itself  proof  of  the  intent  with 
which  the  offence  was  committed  and  of  the  deliberation, 
notwithstanding  the  fact  that  circumstances  may  occur  by 
the  contrivance  of  the  offender  by  which  some  degree  of 
blame  may  be  imputed  to  the  person  killed.^ 

In  the  case  of  State  v.  Grayor,^  which  was  a  trial  for  mur- 
der, the  evidence  showed  that  the  deceased  was  engaged  at 
his  work  and  making  no  demonstration  at  the  time  he  re- 
ceived the  fatal  blow.  The  court  held  that  evidence  of  a  pre- 
vious difficulty  between  him  and  the  defendant  six  hours  before 
was  inadmissible  as  tending  to  mitigate  the  offence,  and  this 
is  true  notwithstanding  the  fact  that  the  deceased  may  have 
used  insulting  language  toward  the  defendant  at  the  time  of 
the  homicide. 

Sec.  73.  inadequate  cooling-  time.  —  What  is  sufficient 
cooling  time,  after  the  provocation',  to  constitute  the  offence 
murder  is  to  be  judged  of  by  the  circumstances  attending 
each  particular  case.  The  time  in  Avhich  an  ordinary  man, 
under  or  in  like  circumstances,  would  have  cooled,  is  a  rea- 
sonable time.^  Where  a  person  of  weak  intellect  had  a  quar- 
rel with  another  whom  he  left,  and  returned  in  five  or  ten 
minutes  with  a  Aveapon  with  which  he  killed  him,  it  was 
held  that  the  interval  was  not  a  sufficient  cooling  time.*  And 
in  State  v.  Moore  ^  one  witness  testified  that  the  prisoner  was 
absent  "  no  time,"  and  another  that  after  the  first  fight  he 
started  to  go  home,  and  on  looking  back  beheld  that  the 
parties  were  again  fighting,  it  was  held  that  there  was  not  suffi- 
cient cooling  time  to  render  the  killing  murder.  In  Ex  jjarte 
Moore  ^  two  friends  met  in  a  saloon  where  they  engaged  in 
playing  cards  and  drinking  beer  until  they  both  became  intoxi- 
cated, and  fell  into  a  dispute  on  politics,  which  resulted  in  the 
use  of  coarse  and  abusive  language  by  each.  The  prisoner  be- 
came excited  and  angry,  and,  leaving  the  card-table,  attempted 
to  go  out  of  the  room  when  the  deceased,  much  the  stronger 

1  1  Hale  r.  C.  452  ;  1  Hawk.  P.  C.  *  Rex  v.  Lynch,  5  Car.  &  P.  324 
168;  BellviU's  Horn.  &  L.  30.  (1832)  ;  s.c.  24  Eng.  C.  L.  586. 

2  89  Mo.  GOO  (1886)  ;  s.c.  1  S.  W.  ^  69  X.  C.  267  (1873)  ;  s.c.  1  Gr. 
Rep.  .365.  Cr.  Rep.  611. 

3  Kilpatrick  r.  Commonwealth,  31  '^  30  Ind.  198  (1868). 
Pa.  St.  198  (1858). 


74  HOMICIDE.  [chap.  V. 

man  of  the  two,  perpetrated  repeated  violence  and  indignity 
upon  the  prisoner,  despite  his  efforts  to  get  away,  inflaming 
his  passion  and  provoking  him  to  extreme  anger.     Thus  pro- 
voked, the  prisoner  escaped  from  the  deceased,  hastened  to  his 
own  home,  a  short  distance,  and  not  being  absent  from  the 
saloon  more  than  five  minutes,  returned  with  his  revolver  in 
hand,  with  which  he  shot  and  killed  the  deceased.    The  court 
held  that  it  was  not  clear  that  there  was  sufficient  time  be- 
tween the  provocation  and  the  act  of  killing  for  the  passion 
to  cool,  and  reason  to  resume  her  control.     In  the  similar  case 
of  Rex  V.  Lynch  ^  the  prisoner  and  the  deceased  were  at  a 
public  house  drinking,  when  a  scuffle  between  them  ensued, 
in  which  the  deceased  struck  the  prisoner  and  gave  him  a 
black  eye ;  the  prisoner  called  for  the  police  and  went  away, 
and  in  about  five  minutes  afterwards  returned  and  stabbed 
the  deceased  with  a  knife,  which  he  usually  carried  with  him. 
In  this  case  the  court  left  it  to  the  jury  to  say  whether  there 
had  been  time  for  the  passion  of  the  prisoner  to  cool,  and  for 
reason  to  regain  its  dominion  over  him.^     In  the  case  of  State 
V.  Norris^  the  defendant  was  violently  beaten  and  abused, 
and  making  his  escape  from  his  assailant,  ran  to  his  house, 
eighty  rods  off,  where  he  procured  a  knife  and  ran  back,  and 
upon  meeting  the  deceased  stabbed  him  ;  and  it  was  held  that 
he  was  only  guilty  of  manslaughter.    But  the  court  say  that  if, 
upon  the  second  meeting,  the  prisoner  had  disguised  the  fact 
of  having  a  weapon  for  the  purpose  of  inducing  the  deceased 
to  come  within  his  reach,  the  killing  would  have  been  murder. 
In*  Hurd  v.  People*  a  quarrel  occurred  between  the  prisoner 
and  the  deceased,  in  which  the  former  gave  the  latter  the  lie. 
They  separated,  and  in  twenty  minutes  afterwards  the  de- 
ceased, with  a  light  walking-stick,  approached  the  prisoner,  say- 
ing he  would  not  stand  what  the  prisoner  had  said,  when  the 
prisoner  picked  a  ''  bearing  stick,"  and  on  being  asked  by  the 
defendant  '' wliy  he  stood  hohling  that  stick,"  replied,  "If 
you  come  here,  I  will  show  you."     Tlie  deceased  raised  his 
cane  to  parry  a  blow  from  the  accused,  who  struck  the  de- 

15  Car.  &  P.  324  (1832);  s.c.  24  &  P.  11;')  (1837)  ;  s.c.  34  En;?.  C.  L.  640. 

Eng.  C.  L.  587.  ='  1  Hay  w.  (N.  C.)  L.  429  (1876)  ; 

-  vSee  People  v.  Sullivan,  7  N.   Y.  s.r.  1  Am.  Dec.  r)64. 

396  (1852)  ;  lleg.  v.  Kirkham,  8  Car.  •»  25  Mich.  405  (1872). 


SEC.  75.]  MURDER.  75 

ceased  two  blows  with  the  bearing  stick,  from  the  effect  of 
which  blows  he  died  in  two  hours.  The  court  held  that  the 
offence  and  cii-cumstances  did  not  prove  the  homicide  to  be 
murder  in  the  first  degree.  In  People  v.  Majone  ^  the  pris- 
oner having  quarrelled  with  his  mother-in-law,  returned  to 
the  house  after  an  absence  of  fifteen  minutes,  nothing  having 
occurred  meanwhile,  or  at  the  time,  to  arouse  his  resentment 
against  her,  walked  into  the  room  where  she  was,  with  appar- 
ent coolness,  placed  a  pistol  which  he  was  accustomed  to  carry 
in  his  pocket  at  her  head,  discharged  it  and  walked  away, 
and  while  attempting  to  shoot  himself,  said,  "  I  take  my  life 
on  account  of  my  mother-in-law  "  ,  it  was  held  that  the  jury 
were  warranted  in  finding  that  the  killing  was  not  only  inten- 
tional, but  deliberate  and  premeditated.  The  court  say  that 
the  "  deliberate  and  premeditated  design,"  which  is  an  essen- 
tial element  of  murder  in  the  first  degree,  must  precede  the 
killing  an  appreciable  space  of  time  sufiicient  for  some  reflec- 
tion and  consideration  and  the  formation  of  a  definite  pur- 
pose, and  that  it  is  immaterial  how  brief  the  space  of  time  is, 
if  sufficient  for  this.^ 

Sec.  74.  Same  —  Passion  after  intent  formed.  —  While 
a  killing  committed  in  the  heat  of  passion  caused  by  adequate 
provocation  is  not  murder,  the  reason  is  because  there  is  no 
malice,  the  intent  to  kill  being  first  formed  when  the  slayer 
is  in  the  heat  of  passion ;  but  the  fact  that  the  defendant  was 
in  a  state  of  passion  at  the  moment  of  the  killing  cannot  avail 
him,  either  as  a  mitigation  or  as  a  defence,  if  the  killing  was 
deliberately  intended  and  designed  before  provocation  was 
given  or  passion  excited.^ 

Sec.  75.  Same  —  Pretence  of  figliting-.  —  Where  one  per- 
son seeks  another  with  the  intention,  under  the  pretence  of 
fighting,  to  stab  him,  and  a  homicide  ensues,  it  ^vill  be  clearly 
murder  in  the  assailant,  no  matter  what  provocation   was 

191  N.  Y.  211  (1883);  s.c.  16N.Y.  (1879);    People  v.  Sullivan,  7  N.  Y. 

Week.  Dig.  199 ;   1  N.  Y.  Cr.  Rep.  94,  396     (1852);    State    v.    Hensley,    94 

affirming  i2  Abb.  (N.  Y.)  N.  C.  187.  N.  C    1021    (1886)  ;  State   v.  Gooch, 

2  See  People  v.  Conroy,  97  N.  Y.  62,  94  N.  C.  987  (1886)  ;  State  v.  Lane, 
76  (1884).  4  Ired.  (N.  C.)  L.  118  (184-3)  ;  State 

3  State  V.  Shippey,  10  Minn.  228  v.  Martin,  2  Ired.  (N.  C.)  L.  101 
(1865);    State   v.   Hill,   69    Mo.   451  (1841). 


76  HOMICIDE.  [chap.  V. 

apparently  then  given,  or  how  high  the  assailant's  passion  rose 
during  the  combat,  for  the  malice  is  express.^  And  it  has 
been  said  that  if  A,  from  previous  angry  feelings,  on  meeting 
with  B,  strikes  him  with  a  whip,  with  the  view  of  inducing 
B  to  draw  a  pistol,  or  believing  he  will  do  so,  in  resentment 
of  the  insult,  and  determines,  if  he  does  so,  to  shoot  B  as 
soon  as  he  draws,  and  B  does  draw,  and  A  immediately  shoots 
and  kills  B,  this  is  murder.^ 

Sec.  76.  Same  —  Feig-ned  reconciliation.  —  Where  two 
persons  who  have  formerly  fought  are  afterwards,  to  all 
appearance,  reconciled,  and  fight  again  on  a  fresh  quarrel,  it 
is  not  to  be  presumed  that  they  were  moved  by  the  old  grudge, 
unless  that  fact  appears  from  the  whole  circumstances  of  the 
case ;  ^  but  where  a  man  after  having  received  a  blow  feigns  a 
reconciliation,  and  after  a  lapse  of  a  few  nunutes  invites  his 
adversary  to  a  renewal  of  the  aggression  with  intent  to  use  a 
deadly  weapon,  and  on  such  renewal  uses  such  weapon  Avith 
fatal  effect,  he  is  guilty  of  murder.^ 

Sec.  77.  Malice  implied  by  act  of  killing.  —  iNIalice  is 
always  presumed  where  an  unlawful  homicide  is  shown  to 
have  been  committed  by  the  defendant,  and  no  circumstances 
in  mitigation  or  justification  appear  ;  ^  but,  on  the  other  hand, 
where  facts  or  circumstances  in  mitigation  of  or  justifying 

1  State  V.  Lane,  4  Irod.  (N.  C.)  L.  s.c.  3  Am.  St.  Rep.  320 ;  9  Cr.  L. 
113  (1843).  Mag.  829;   C  Am.  Cr.  Rep.    570;    12 

2  State  V.  Martin,  2  Ired.  (X.  C.)  N.  E.  Rep.  865;  17  N.  E.  Rep.  898; 
L.  101  (1841).  Maiies  v.  People,  100  111.  306  (1883); 

3  See  State  v.  Hill,  4  Dcv.  &  B.  40  Am.  Rep.  U98 ;  Davison  i\  People, 
(N.  C.)  L.  491  (1839)  ;  1  Hale  P.  C.  90  111.  221  (1878)  ;  Murpliy  i-.  People, 
452;  Crom.23;  Dalt.  93;  1  Roll.  .3(50;  37  111.  447  (1865)  ;  Boyle  v.  Slate,  105 
3  Bulst.  171.  •  Ind.  469   (1885)  ;   s.c.   55   Am.   Rep. 

*  Reg.  y.  Selten,  11  Cox  C.  C.  674  218;   7    Cr.   L.   Mag.   655;   5    N.   E. 

(1871).  Rep.  203;  State  v.  Castello,  62  Iowa, 

5  Clements  v.    State,   50   Ala.    117  404  (1883);  s.c.  17  N.  W.  Rep.  605; 

(1874)  ;  People  v.  Bush,  71  Cal.  002  State  v.  Knight,  43    Me.  11    (1857)  ; 

(1887)  ;    People  v.  Belencia,  21    Cal.  Commonwealth  v.  York,  50  Mass.  (0 

544    (1863);     People    v.    Gibson,     17  Mete.)  93  (1845)  ;  Commonwealth  v. 

Cal.  283   (1861);    Dukes  v.  State,   14  Drew,  4  Mass.  391   (1808);    State    v. 

Fla.  499  (1874);  Phelps  i'.  State,  75  Brown,    12    Minn.  538   (1867);    State 

Ga.    571    (1885)  ;   Freeman    v.    State,  v.    Shippey,    10    Minn.    223     (1865) ; 

70  Ga.  736  (1883);  Clarke    v.  State,  Hague  r.  State,  34  Miss.  616  (1857); 

35   Ga.    75   (1866);   Conn    v.   People,  Green  r.  State,  28  Miss.  687   (1855); 

116  III.  458  (1886)  ;  s.c.  6  N.  E.  Hep.  McDaniel  v.  State,  16  Miss.  (8  Smed. 

463;  Allies  v.  Pto/Vc,  122  111.  1  (1887)  ;  &  M.)  402  (1847)  ;  State  v.  Lane,  64 


SEC.  78.] 


MUEDEK. 


77 


the  act  appear,  there  is  no  implication  of  malice.^  The  kw 
attributes  malice  to  reckless  acts  of  homicide,  where  no  par- 
ticular motive  can  be  traced.^  Thus  where  the  defendant, 
when  angry  and  excited,  threw  a  beer-glass  at  his  wife,  which 
broke  a  lamp  she  was  carrying,  and  she  was  fatally  burned, 
it  was  held  immaterial  whether  he  intended  to  strike  her  or 
others  who  were  present,  or  whether  he  had  any  specific 
•intent,  because  the  act  itself  showing  "an  abandoned  and 
malignant  heart,"  malice  was  implied,  and  he  was  guilty  of 
murder.^ 

Sec.  78.    Same  —  Interfering-     between    combatants.  — 

Where  a  person  interferes  between  combatants  and  unnec- 
essarily takes  the  life  of  either,  the  law  will  presume  malice 
from  the  act  of  killing  alone.  Thus  where  two  persons  are 
fighting,  and  a  third,  unconnected  with  either,  without  any 
apparent  provocation,  stabs  one  of  the  parties,  the  law  will 
imply  malice.*     And  where  a  person  who  is  neither  assaulted 


Mo.  319  (1876)  ;  State  v.  Mitchell, 
64  Mo.  191  (1876)  ;  State  v.  Holme, 
54  Mo.  153  (1873);  Milton  v.  State, 
6  Neb.  136  (1877) ;  Preuit  v.  People, 
5  Neb.  377  (1877)  ;  Stokes  v.  People, 
53  N".  Y.  164  (1873)  ;  People  v.  Kirbv, 
2  Park.  Cr.  Gas.  (N.  Y.)  28  (1823)  ; 
State  V.  Ta-cha-na-tah,  64  N.  C.  614 
(1870)  ;  State  v.  Smith,  3  Dev.  &  B. 
(N,  C.)  L.  117  (1838)  ;  State  v.  John- 
son, 3  Jones  (N.  C.)  L.  266  (1855)  ; 
Davis  V.  State,  25  Ohio  St.  369 
(1874)  ;  Huling  v.  State,  17  Ohio  St. 
583  (1867)  ;  State  v.  Town,  Wrig^ht 
(Ohio)  75  (1832);  State  v.  Turner, 
AVright  (Ohio)  20  (1831);  Cathcart 
r.  Commonwealth,  37  Pa.  St.  108 
(1860) ;  State  v.  Ferguson,  2  Hill 
(S.  C.)  L.  619  (1885)  ;  State  v.  Smith, 
2  Strobh.  (S.  C.)  L.  77  (1847); 
Quarles  v.  State,  1  Sneed  (Tenii.) 
407  (1853)  ;  Mitchell  v.  State,  5  Yerg. 
(Tenn.)  340  (1833)  ;  Conner  v.  State, 
4  Yerg.  (Tenn.)  137  (18-33) ;  Hamhii 
V.  State,  36  Tex.  523  (1872);  s.c.  1 
Gr.  Cr.  Rep.  6-50;  McCoy  v.  State, 
25  Tex.  37  (I860)  ;  Turner  v.  State, 
16  Tex.  App.  378  (1885)  ;  Sharp  v. 
State,  6  Tex.  App.  650  (1879)  ;  Brown 
V.   State,   4   Tex.    App.   275    (1879); 


Johnston's  Case,  5  Gratt.  (Va.)  660 
(1848)  ;  State  v.  Douglass,  28  W.  Va. 
297  (1886) ;  United  States  v.  Arm- 
strong, 2  Curt.  C.  C.  446  (1855). 
Compare  Kent  v.  People,  8  Colo.  563 

(1885)  ;  State  i-.  Trivas,  32  La.  An. 
1086  (1880);  s.c.  36  Am.  Pep.  293; 
State  I'.  Swayze,  30  La.  An.  pt.  II. 
1323  (1878) ;  Goodall  v.  State,  1  Oreg. 
333  (1861). 

1  See  People  v.  March,  6  Cal.  543 
(1856)  ;  People  v.  Milgate,  5  Cal.  127 
(1855)  ;  Murphy  v.  People,  37  111. 
448  (1865)  ;  Graham  v.  Common- 
wealth, 16  B.  Mon.  (Ky.)  587  (1855)  ; 
s.c.  Law.  Insan.  375;  State  v.  Knight, 
43  Me.  11  (1857)  ;  State  v.  Grear,  28 
Minn.  426  (1881);  State  v.  Johnson, 
3  Jones  (N.  C.)  L.  266  (1855)  ;  State 
V.  Stark,  1  Strobh.  (S.  C.)  L.  479 
(1847)  ;  Quarles  r.  State,  1  Sneed 
(Tenn.)  407  (1853)  ;  Turner  v.  State, 
10  Tex.  App.  378  (1885). 

2  Conn    V.    People,     116    111 

(1886)  ;  s.c.  6  N.  E.  Kep.  46.3. 

3  Mayes  v.    People,    106    111 
(1883)  ;  s.c.  46  Am.  Rep.  698. 

^  Conner  v.  State,  4  Yerg.  (Tenn.) 
137  (1833). 


458 


106 


78  HOMICIDE.  [chap.  V. 

nor  threatened  gets  down  from  his  horse,  arms  himself  mth 
a  club,  interposes  between  two  others  about  to  engage  in  a 
fight,  and  kills  one  of  them,  he  is  guilty  of  murder. ^ 

Sec.  79.  Same  —  Antecedent  quarrel  —  Presumption 
therefrom  as  to  malice. —  Where  tlie  parties  to  an  anteced- 
ent quarrel  meet,  and  an  affray  ensues,  in  which  one  is  killed, 
the  question  whether  malice  in  such  killing  is  inferrible  from 
the  previous  quarrel,  is  to  be  determined  by  the  jury  under  the 
circumstances  of  the  case.  It  is  error  to  instruct  the  jury 
that  if  there  was  malice  on  the  part  of  the  accused  he  is  guilty 
of  murder,  even' though  he  committed  the  homicide  in  self- 
de  fence. 2 

In  a  case  wherein  some  of  the  facts  tend  to  establish  that 
the  killing  was  upon  express,  others  upon  implied  malice,  and 
wdiere  fresh  provocation  intervenes  between  the  preconceived 
malice  and  the  death,  it  will  not  be  presumed  that  the  killing 
was  upon  the  antecedent  malice  ;  but  though  such  malice 
will  not  be  presumed,  it  may,  by  the  circumstances  and  facts 
in  the  case,  be  proved  -to  have  actuated  the  person  in  the 
killing,  notwithstanding  the  fresh  provocation.^ 

Sec.  80.  Same — Anarchists' case  —  Manufacture  of  dyna- 
mite bombs.  —  In  the  famous  Chicago  Anarchists'  case,*  the 
court,  in  speaking  of  the  presumption  of  malice  from  the 
making  of  the  dynamite  bombs  with  which  the  killing  was 
done,  say :  "  Here  is  a  man,  connected  with  a  certain  organ- 
ization, engaged  in  arming  and  drilling  for  a  conflict  witli  the 
police.  He  is  experimenting  with  dynamite,  and  in  th?  con- 
struction of  bombs  under  the  direction  of  armed  members' 
of  that  organization.  He  makes  bomb-shells,  fills  them  with 
dynamite,  takes  them  to  the  meeting-place  of  armed  members 
of  that  organization,  puts  them  wliere  access  to  them  can 
easily  be  had,  using  such  precautions  as  such  dangerous  ex- 
plosives naturally  re(piiie.  At  once,  certain  of  these  armed 
members,  such  as  the  two  large  men  of  the  Lehr  and  Wehr 
Verein  already  spoken  of,  come  forward  and  take  bombs  and 

'  Johnston's  Case,  5  Gratt.  (Va.)  *  Spies  v.  Tc-oplo,  122  111.  1  (1887); 

660  (1848).  s.c.  3  Am.  St.  Rep.  :520;  9  Cr.  L.  Mag. 

2StMtc  V.  Ta-cha-na-tali,  01  N.  C.  .820;  6  Am.  Cr.  Rop.  570;  12  N.  E. 
614  (1870).  '  Rep.   805;    17  N.  E.  Rep.  898. 

8  McCoy  I'.  State,  25  Tex.  37  (1800). 


SEC.  81.]  MURDER.  79 

go  their  several  ways.  In  a  little  more  than  an  hour  after- 
wards, one  of  these  very  bombs  is  thrown  into  a  crowd  of 
policemen  and  kills  one  of  them.  Was  not  the  conduct  of 
this  man,  who  thus  coolly  and  carefully  prepared  the  weapons 
for  one  definite  class  of  men  to  use  in  the  murder  of  another 
definite  class  of  men,  marked  by  '  deliberation,'  as  that  term 
is  defined  in  the  authorities?  It  was  a  fair  conclusion,  from 
the  evidence  that  Lino-of  knew  that  the  bombs  he  was  makinor 
would  be  thrown  among  the  police.  It  was  a  fair  conclusion 
from  the  evidence  that  he  intended  the  bombs  to  be  placed 
in  the  hallway  to  be  used  by  the  members  of  the  Interna- 
tional groups,  not  only  in*  the  interest  of  the  general  move- 
ment against  the  police,  with  which  he  was  connected,  but 
in  the  interests  of  the  particular  conspiracy  that  was  con- 
cocted on  Monday  night.  Even  if  he  did  not  know  the  par- 
ticular individual  Avho  was  to  throw  the  bomb,  he  knew  that 
it  would  be  thrown  by  some  one  belonging  to  the  sections  or 
groups  already  described,  and  this  was  sufficient  to  affect  him 
with  the  guilt  of  advising,  encouraging,  aiding  or  abetting 
the  crime  charged  in  the  indictment.  He  may  not  have 
known  what  particular  policeman  would  have  been  killed, 
whether  Matthias  J.  Degan  or  another.  But  when  he  opened 
the  loaded  satchel  at  Neff's  Hall  on  Tuesday  night,  that  act, 
viewed  in  the  light  of  all  the  antecedent,  attendant,  and  sub- 
sequent occurrences,  was  virtually  a  designation  of  the  body 
or  class  of  men  who  were  to  be  attacked.  When  one  of  such 
class  was  killed,  the  guilt  was  the  same  as  though  a  person 
bearing  a  particular  name  had  been  pointed  out  as  the  victim. 
Even  if  he  did  not  know  that  one  of  the  bombs  would  be 
thrown  on  that  evening  at  a  particular  place  called  the  Hay- 
market,  it  was  sufficient  that  he  knew  it  was  to  be  used  at 
that  point  in  the  city  where  the  collision  should  occur 
between  the  workingmen  and  the  police.  Such  a  collision 
did  occur  at  the  Haymarket." 

Sec.  81.    Same  —  Rule  in  Colorado  and  Louisiana.  —  In 

Colorado  the  rule  is  otherwise.  There  malice  is  to  be  found 
from  the  evidence,  not  inferred  from  the  fact  of  the  killing. 
And  this  is  so  where  the  conviction  is  of  murder  in  the  sec- 
ond degree.     And  it  has  been  said  that  there  is  nothing  in 


80 


HOMICIDE. 


[chap.  V. 


the  Colorado  Criminal  Code  ^  to  imply  tlie  contrary,  when 
that  Code  is  construed  in  connection  with  other  provisions 
of  the  statute.^ 

In  Louisiana,  also,  the  jury  are  to  infer  malice  only  from 
the  surrounding  circumstances ;  it  is  not  an  implication  of 
law  from  the  act  of  killing.''^ 

Sec.  82.   Same —  From  means  used  —  Deadly  weapon.  — 

Where  the  homicide  was  committed  Ij}'  the  use  of  a  danger- 
ous weapon  likely  to  produce  death,  the  law  j^resumes  malice 
in  the  absence  of  a  showing  to  the  contrary;^  and  this  is  the 


1  Colo.  Cr.  Code,  §  36. 

2  Kent    V.    People,    8     Colo.     563 

(1885)  ;  s.c.  5  Am.  Cr.  Rep.  400. 

3  State  V.  Swayze,  30  La.  An.  pt. 
II.  1323  (1878). 

*  See  Jackson  v.  State,  81  Ala.  33 

(1886)  ;  s.c.  1  So.  Rep.  33;  Sylvester 
V.  State,  71  Ala.  17  (1881)  ;  Washiug- 
ton  V.  State,  60  Ala.  10  (1877)  ;  s.c. 
31  Am.  Rep.  28  ;  3  Am.  Cr.  Rep.  171 ; 
Hadley  v.  State,  55  Ala.  31  (1870)  ; 
Eiland  v.  State,  52  Ala.  322  (1875)  ; 
Clements  v.  State,  50  Ala.  117 
(1873)  ;  Murphy  v.  State,  37  Ala. 
142    (1801);    Dill   v.  State,   25   Ala. 

15  (1854)  ;  Oliver  v.  State,  17  Ala. 
587  (1850)  ;  Palmore  v.  State,  29 
Ark.  248  (1874)  ;  McAdams  v.  State, 
25  Ark.  405  (1869)  ;  Atkins  v.  State, 

16  Ark.  568  (1855)  ;  Bivens  v.  State, 
11  Ark.  455  (1850)  ;  People  v.  Barry, 
31  Cal.  357   (1806)  ;  People  v.  March, 

6  Cal.  543  (1856)  ;  Murphy  v.  Peo- 
ple, 9  Colo.  439  (1886)  ;  s.c.  13  Pac. 
Rep.  578 ;  United  States  v.  Crow 
Dog,  3  Dak.  106  (1882)  ;  State  v. 
Ward,  5  Harr.  (Del.)  496  (1855); 
Moon  V.  State,  08  Ga.  687  (1882)  ; 
Hill  !•.  State,  41  Ga.  484  (1871);  Clarke 
r.  State,  35  Ga.  75  (1806);  Henry  v. 
State,  33  Ga.  441  (1863);  Choice  v. 
Stati;  31  Ga.  424  (1860)  ;  s.c.  Law. 
Insan.  538;  Lyon  v.  State,  22  Ga. 
399  (1857)  ;  Ray  v.  State,  15  Ga.  223 
(1854)  ;  Mitchum  v.  State,  11  Ga.  015 
(1852)  ;  Davison  v.  People,  90  Til. 
221  (1878)  ;  Bonle  v.  Slate,  105  Ind. 
409   (1885);    s.c.  55   Am.   Rep.  218; 

7  Cr.  L.  Mag.  055;  5  N.  E.  Rep.  203 ; 


Miller  v.  State,  37  Ind.  432  (1871)  ; 
Murphy  v.  State,  31  Ind.  511  (1869) ; 
Bradley  r.  State,  31  Ind.  492  (1869)  ; 
Clem  r.  State,  31  Ind.  480  (1869) ;  Ex 
parte  iMoore,  30  Ind.  197  (1868)  ; 
Beaucliamp  v.  State,  6  Blackf.  (Ind.) 
300  (1842)  ;  State  v.  Rainsbarger,  71 
Iowa,  746  (1887)  ;  s.c.  31  N.  W.  Rep. 
865  ;  State  v.  Perigo,  70  Iowa,  657 
(1886)  ;  State  v.  Hockett,  70  Iowa, 
442  (1886);  s.c.  9  Cr.  L.  Mag.  208; 
30  N.  W.  Rep.  742  ;  State  v.  Deck- 
lotts,  19  Iowa,  447  (1805)  ;  State  v. 
Gillick,  7  Iowa,  287  (1858) ;  Donnel- 
lan  V.  Commonwealth,  7  Bush  (Ky.) 
670  (1870)  ;  State  v.  Mullen,  14  La. 
An.  577  (1859)  ;  Commonwealth  v. 
York,  50  Mass.  (9  :Metc.)  93  (1845)  ; 
Hurd  V.  People,  25  Mich.  405  (1872)  ; 
State  V.  Hoyt,  13  Minn.  132  (1868)  ; 
Hawthorne  i-.  State,  58  Miss.  778 
(1881)  ;  Cannon  v.  State,  57  Miss. 
147  (1870)  ;  Evans  v.  State,  44  Miss. 
762  (1870);  Head  v.  State,  44  Miss. 
731  (1870)  ;  Ex  jnirte  Wray,  30  Miss. 
673  (1856)  ;  Green  v.  State,  28 
Miss.  687  (1855)  ;  Woodsides  v.  State, 
3  Miss.  (2  How.)  655  (1837);  State 
V.  Alexander,  66  Mo.  148  (1877)  ; 
State  V.  Christian,  m  Mo.  138  (1877)  ; 
State  V.  Evans,  65  Mo.  574  (1877)  ; 
State  v.  Underwood,  57  Mo.  40  (1874)  ; 
S.c.  1  Am.  Cr.  Rep.  251 ;  State  v. 
Hays,  23  Mo.  287  (1856)  ;  Jones  v. 
State,  14  Mo.  409  (1851);  Roberts 
V.  State,  14  Mo.  138  (1851);  Stater. 
Bycrs,  100  N.  C.  512  (1888);  s.c.  6 
S.  E.  Rep.  420;  State  v.  Thomas, 
98    N.    C.   599   (1887);     s.c.    2   Am. 


SEC.  83.] 


MURDER. 


81 


case  even  tliongli  the  defendant  habitually  carried  the  deadly 
weapon,  and  used  it  in  mutual  combat,  if  with  intent  to  kill, 
unless  he  was  injured  without  fault  and  its  use  was  necessary 
to  prevent  great  bodily  harm  from  the  deceased.^  The  ques- 
tion as  to  what  is  a  deadly  weapon  depends  largely  upon  the 
circumstances  of  each  particular  case ;  but  it  may  be  laid 
down  as  a  general  rule  that  a  deadly  weapon,  from  the  use 
of  which  malice  may  be  inferred,  is  not  one,  a  blow  from 
which  would  ordinarily  produce  death,  but  one  from  which, 
as  it  was  used,  death  would  probably  result.^ 

Sec.  83.  Same  —  What  weapons  are  deadly.  —  As  a  gen- 
eral rule  the  question  whether  a  particular  instrument  or 
weapon  is  deadly  is  one  of  law,  to  be  decided  by  the  court ;  ^ 


St.  Rep.  -351;  4  S.  E.  Rep.  518; 
10  Cr.  L.  Mag.  443;  State  v.  Willis, 
63  N.  C.  26  (1868)  ;  State  v.  Merrill, 
2  Dev.  (N.  C.)  L.  269  (1829)  ;  State 
V.  Hildreth,  9  Ired.  (N.  C.)  L.  429 
(1849)  ;  State  v.  Collins,  8  Ired. 
(N.  C.)  L.  407  (1848) ;  State  v.  West, 
6  Jones  (N.  C.)  L.  505  (1859)  ;  State 
V.  Hogue,  6-  Jones  (N.  C.)  L.  381 
(1859)  ;  State  v.  Johnson,  3  Jones 
(N.  C.)  L.  266  (1855)  ;  Thomas  v. 
People,  67  N.  Y.  218  (1876);  People 
V.  Lamb,  2  Keyes  (N.  Y.)  360  (1806)  ; 
State  V.  EUic'k,  1  Winst.  (N.  C.)  L. 
66  (1804)  ;  Erwhi  v.  State,  29  Ohio 
St.  186  (1876)  ;  s.c.  2  Am.  Cr.  Rep. 
251;  McCiie  v.  Commonwealth,  78  Pa. 
St.  185  (1875)  ;  s.c.  21   Am.  Rep.  7  ; 

1  Am.  Cr.  Rep.  268 ;  Commonvvealth 
V.  Drum,  58  Pa.  St.  9  (1868)  ;  Kil- 
patrick  v.  Commonwealth,  31  Pa.  St. 
198  (1858)  ;  Cathcart  v.  Common- 
vvealth, 37  Pa.  St.  112  (1860);  State 
V.  Ferguson,  2  Hill  (S.  C.)  L.  619 
(1835) ;  Anderson  v.  State,  3  Head 
(Tenn.)  455   (1859)  ;    Dains  v.  State, 

2  Humph.  (Tenn.)  4.39  (1841)  ;  Haile 
V.  State,  1  Swan.  (Tenn.)  248  (1851)  ; 
Hanihi/  V.  State,  36  Tox.  525  (1872)  ; 
s.c.  1  Gr.  Cr.  Rep.  650 ;  Cockrum  v. 
State,  24  Tex.  394  (1859)  ;  Gatlin  v. 
State,  5  Tex.  App.  531  (1879)  ;  Mur- 
ray V.  State,  1  Tex.  App.  417  (1877)  ; 
State    V.    McDonnell,     32     Vt.    491 

6 


(I860)  ;  State  r.  Douglass,  28  W.  Va. 
297  (1886)  ;  Hill  v.  Commonwealth, 
2  Gratt.  (Va.)  594  (1845)  ;  United 
States  V.  McGlue,  1  Curt.  C.  C.  1 
(1851)  ;  s.c.  Law.  Insan.  54  ;  United 
States  V.  Outerbridge,  5  Sawy.  C.  C. 
620  (1808)  ;  Reg.  v.  McDowell,  25 
Up.  Can.  Q.  B.  112  (1865);  Rex  v. 
Taylor,  5  Burr.  2793  (1771)  ;  Reg.  v. 
Smith,  8  Car.  &  P.  160  (1837);  s.c. 
34  Eng.  C.  L.  666;  Macklin's  Case, 
2  Lew.  C.  C.  225  (1838).  Compare 
Tesney  v.  State,  77  Ala.  33  (1884)  ; 
Maher  v.  People,  10  Mich.  212  (1862)  ; 
s.c.  81  Am.  Dec.  781 ;  Cotton  v.  State, 
31  Miss.  504  (1856)  ;  State  v.  Newton, 
4  Nev.  410  (1868)  ;  Stokes  v.  State, 
53  N. Y.  164  (1873). 

1  See  Lyon  v.  State,  22  Ga.  399 
(1857)  ;  State  v.  Hoyt,  13  Minn.  132 
(1808)  ;  Ex  parte  Wray,  30  Miss. 
673  (1856)  ;  Green  v.  State,  28  Miss. 
687  (1855)  ;  State  v.  Christian,  66 
Mo.  1.38  (1877)  ;  State  v.  Hogue,  6 
Jones  (N.  C.)  L.  381  (1859)  ;  State  v. 
Ellick,  1  Winst.  (N.  C.)  56  (1864)  ; 
State  V.  Eerguson,  2  Hill  (S.  C.)  L. 
619  (1835). 

2  Sylvester  v.  State,  71  Ala.  17 
(1881). 

3  State  V.  Collins,  8  Ired.  (N.  C)  L. 
407  (1848);  State  v.  West,  6  Jones 
(N.  C.)  L.  505  (1859). 


82  HOMICIDE.  [chap.  V. 

but  it  lias  been  held  that  where  the  court  submitted  the 
question  to  the  jury,  the  error  was  beneficial  to  the  accused, 
and  therefore  not  ground  for  a  new  trial.^ 

Before  malice  can  be  inferred  from  the  use  of  a  weapon,  it 
must  be  shown  to  be  a  deadly  weapon  in  contemplation  of 
law ;  such  a  weapon  that  death  would  be  the  natural,  reason- 
able, or  probable  consequence  from  the  use  of  it.^  The  actual 
effects  produced  by  a  weapon  may  aid  in  determining  its 
character,  and  in  showing  that  the  person  using  it  ought  to 
be  aware  of  the  danger  of  thus  using  it.^  Thus  an  oaken 
staff,  near  three  feet  long,  of  the  diameter  of  an  inch  and  a 
half  or  two  inches,  with  which  three  blows  were  stricken 
upon  the  head  of  a  man  while  drunk  and  unawares,  shatter- 
ing the  bones  of  the  head,  and  rupturing  the  interior  vessels 
of  the  brain,  has  here  been  held  to  be  a  deadly  weapon,  and 
a  killing  by  the  use  of  it  in  that  way,  murder.^  A  bowie- 
knife,  a  dirk-knife,  or  other  similar  knife,  is  generally  con- 
ceded to  be  a  deadly  weapon,*  and  it  cannot  be  said  as  a 
matter  of  law  that  a  pocket-knife  is  not  a  deadly  weapon.^ 

It  is  not  the  intention  to  use  a  deadly  weapon,  but  the 
intention  to  kill,  of  which  the  use  of  the  weapon  is  evidence, 
that  constitutes  the  crime  of  murder ;  and  this  distinction 
should  be  made  clear  to  the  jury  in  the  instructions  on  this 
point.^  Thus  where  it  appeared  that  the  prisoner  had  pre- 
pared a  deadly  weapon  with  the  intention  to  use  it  in  case 
he  got  into  a  fight  with  the  deceased,  and  went  to  a  particular 
place  for  the  purpose  of  meeting  the  deceased  and  having  a 
conflict  with  him,  he  was  held  guilty  of  murder,  not  man- 
slaughter.''' Where  a  party  committing  a  trespass  goes  armed 
with  deadly  weapons  to  take  the  life  of  the  owner  of  the 
premises,  should  he  attempt  to  eject  him,  he  is  guilty  of  mur- 
der in  killing  the  owner,  even  to  repel  an  assault  by  the  latter, 


1  State  r.  Collins,  sired.  (N.C.)  L.  (N.   C.)    L.   5fi    (18r)4);   Cockrum   v. 
407  (1848).  State,  24  Tex.  394  (185!)). 

2  Williains    ?■.    State,    81     Ala.    1  s  Sylvester   v.    State,    71     Ala.    17 
(1880)  ;  s.c.  9  Cr.  L.  Mag.  480 ;   1  So.  (1881). 

Kep.  179.  6  Palmore    v.   State,   29   Ark.    248 

3  State  V.  -West,  6  Jones  (N.  C.)  L.  (1874). 

605  (1859).  ■?  State  r.  Hogue,  G  Jones  (N.  C.) 

*  See    State    v.    Ellick,   1    Winst.  L.  381  (1859). 


SEC.  85.]  MURDER.  83 

unless  tlie  assault  was  such  as  to  appear  to  show  an  intention 
to  take  the  intruder's  life.^ 

Sec.  84.  Same — Would  not  justify  use  of  deadly  weapon. 

—  If  homicide  be  committed  in  a  sudden  heat  by  the  use  of 
a  deadly  weapon,  no  provocation  given  by  mere  words  will 
reduce  the  killing  to  manslaughter.  The  question  should 
never  be,  "Was  there  anger?"  merely,  but  "Was  there  legal 
provocation  to  such  anger?"  The  use  of  a  dangerous  weapon 
under  a  provocation  by  words  only,  or  under  no  provocation, 
is  alwaj's  evidence  of  malice  aforethought.  To  constitute 
malice  aforethought  it  is  only  necessary  that  there  be  a 
formed  design  to  kill;  and  such  design  may  be  conceived 
at  the  moment  the  fatal  stroke  was  given,  as  well  as  a  long 
time  before.  Malice  aforethought  means  the  intention  to 
kill ;  and  where  such  means  are  used  as  are  likely  to  pro- 
duce death,  the  legal  presumption  is  that  death  was  intended.^ 
It  is  thought  that  malice  is  not  proved  merely  by  the  selec- 
tion and  use  of  a  deadly  weapon  in  a  deadly  manner  without 
lawful  excuse.^  Thus  the  use  of  a  deadly  weapon  in  resist- 
ing an  illegal  arrest,  is  not  sufficient  to  constitute  the  killing 
murder.*  But  if  A  threatens  B  with  personal  violence,  and 
the  threat  is  communicated  to  B,  and  B  thereupon  arms  him- 
self with  a  deadly  weapon,  and  meeting  A  kills  him,  while 
A  is  not  making  any  hostile  demonstrations  against  B,  the 
killing  is  wilful,  deliberate,  malicious,  and  is  a  murder.^ 

Sec.  85.  Same  —  Means  calculated  to  produce  death 
under  peculiar  circumstances.  —  In  order  to  raise  an  implica- 
tion of  malice,  the  means  by  which  the  homicide  is  committed 
need  not  necessarily  be  such  as  would  ordinarily  produce 
death ;  but  where  it  is  apparent  from  the  circumstances,  or 
from  the  condition  of  the  person  killed,  that  the  acts  or  assault 
made  or  accomplished  by  such  means  or  in  such  manner 
as  is  likely  to  prove  fatal,  a  presumption  of  malice  arises. 


iLyon  V.  State,  22  Ga.  309  (1886);  s.c.  8  Cr.  L.  Mag.  156 ; -28 
(1857).  N.  W.  Rep.  457. 

-  Beaucliamp   v.   State,   6   Blackf .  *  .Tones  v.  State,  14  Mo.  409  (1851)  ; 

(Ind.)  300  (1842).  Roberts  v.  State,  14  Mo.  138  (1851). 

3  State    V.   Perigo,    70    Iowa,    657  •''  State  v.  Mullen,  14  La.  An.  577 

(1859). 


84  HOMICIDE.  [chap.  V. 

Thus  where  the  defendant  assaulted  a  woman  with  his  hands 
and  feet  at  a  time  when  he  was  aware  that,  owing  to  her 
condition,  the  assault  might  prove  fatal,  it  was  held  that  the 
implication  of  malice  arose,  and  a  conviction  of  murder  or 
voluntary  manslaughter  might  be  had;  for  in  such  a  case 
the  use  of  a  weapon  or  instrument  calculated  to  destroy  life 
is  not  a  necessary  condition  precedent  to  the  implication.^ 

Sec.  86.  Same  —  By  administering^  poison.  —  Malice  is. 
implied  by  the  act  of  administering  poison  of  a  kind  and 
quantity  ordinarily  sufficient  to  kill,  in  the  absence  of  cir- 
cumstances in  excuse  or  mitigation.^  Thus  in  the  absence 
of  any  evidence  to  qualify  the  le_gal  presumption  of  guilt,  a 
nurse  who,  knowing  that  laudanum  is  poison,  gives  an  infant 
enough  to  kill  it,  is  guilty  of  murder.^ 

Sec.  87.    Same —  Shown  by  surrounding-  circumstances. 

— While  the  law  presumes  malice  from  a  deliberate  act  caus- 
ing another's  death,  or  from  the  cool  and  deliberate  use  of 
a  deadly  weapon,  yet  where  a  full  disclosure  of  all  the  facts 
and  circumstances  obviates  all  necessity  for  presumption,  all 
of  such  facts  and  circumstances,  taken  together,  constitute 
the  only  basis  for  a  finding  that  the  homicide  was  committed 
with  "malice  aforethought";*  but  while  this  is  the  case 
where  there  is  a  sliowing  of  express  malice,  yet  there  may  be 
single  acts  or  circumstances  entering  into  the  homicide,  aside 
from  the  means  used  in  its  commission,  from  which  malice 
may  properly  be  inferred ;  as,  for  instance,  threats  made  by 
defendant  against  deceased  before  the  killing.^ 

1  Murphj'  V.  People,  9  Colo.  435  *  Eil.ind  v.  State,  52  Ala.  322 
(1886).  (1875) ;  Dacey  r.  People,  116  111.  555 

2  People  V.  Sanchez,  24  Cal.  17  (1886)  ;  s.c.  6  Am.  Cr.  Rep.  4(51  ; 
(1864);  State  v.  Wells,  61  Iowa,  629  Lamar  v.  State,  63  Miss.  265  (1885). 
(1883)  ;  .s.c.  47  Am.  Hep.  822;  Smith  See  Newton  r.  State, 21  Fla.53  (1884); 
V.  State,  1  Kan.  365  (1863)  ;  State  v.  Farris  v.  Commonwealth,  14  Uiish 
Wagner,  78  Mo.  644  (1883);  s.c.  47  (Ky.)  362  (1878);  State  r.  Wisdom, 
Am.  Rep.  131;  State  v.  Pike,  49  N.  H.  84  Mo.  177  (1884)  ;  Territory  v.  Ro- 
399    (1870);     State    v.    Leak,    Phill.  mine,  2  N.  Mex.  114  (1881). 

(N.  C.)    L.    450    (1868)  ;    Bratton    v.  '^  See  Jackson  v.  State,  81   Ala.  33 

State,  10  Humph.  (Tenn.)  103  (1849) ;  (1886)  ;  s.c.  1   So.  Kep.  33;   Hawkins 

Tooney    v.    State,    5    Tex.    App.    16.3  v.  State,  25  Ga.  207   (1858)  ;  i?o,y/e  v. 

(1879).  Stale,  105  Ind.  469  (1885)  ;  s.c.  55  Am. 

3  State  V.  Leak,  PliiU.  (N.  C.)  L.  Rep.  218;  7  Cr.  L.  Mag.  655;  5  N.  E. 
450  (1868).  Rep.  203;  Pickens  v.  State,  61  Miss. 


SEC.  88.]  MURDER.  85 

In  Beltram  v.  State,i  it  appeared  in  proof  that  the  defend- 
ant, after  stating  he  was  going  to  his  lionse  to  get  his  gun  to 
kill  one  M.,  with  whom  the  defendant  had  a  standing  feud,  pro- 
cured the  gun,  loaded  it,  went  to  the  field  where  jNI.  was 
ploughing,  took  aim  at  M.,  and  while  M.  was  dodging  around 
his  horse  to  escape,  shot  and  killed  him,  this  was  very  prop- 
erly held  to  establish  design  and  premeditation,  making  the 
offence  murder. 

In  State  v.  Bonds,^  the  defendant  demanded  some  money 
of  the  deceased,  which  he  claimed  the  latter  owed  him,  and 
threatened  to  shoot  him  unless  he  paid  it,  at  the  same  time 
drawing  a  pistol.  Two  bystanders  interfered,  and,  in  the 
struggle  between  them  and  the  defendant,  the  pistol  in  de- 
fendant's hands  was  discharged,  and  deceased  was  killed. 
The  court  held  that  if  defendant  claimed  that  the  discharge 
was  accidental,  it  devolved  on  him  to  prove  it.  The  threat 
was  no  less  conclusive  of  defendant's  premeditated  violence 
because  it  Avas  coupled  with  a  condition. 

Sec.  88.  Same  —  Quarrel  —  Retreat  and  pursuit.  — Where 
one  party  retreats  to  avoid  a  difficulty  or  quarrel,  or  to  get 
out  of  one  already  begun,  and  he  is  pursued  by  his  antago- 
nist and  killed,  tlfis  will  show  malice  and  premeditated  de- 
sign on  the  part  of  the  slayer.^  Thus  where,  upon  a  quarrel, 
one  of  the  parties  retreated  about  fifty  yards,  apparently  with 
the  desire  of  avoiding  a  conflict,  the  other  party  pursuing, 
with  his  arms  uplifted,  and,  when  he  reached  his  opponent 
stabbed  and  killed  him,  the  latter  having  stopped  and  first 
struck  with  his  fist,  this  was  held  to  be  murder.^  Where 
it  appeared  in  evidence  that  deceased  had  threatened  about 
three  weeks  before  that  he  would  kill  the  prisoner ;  that  they 
met  on  the  street  on  a  starlight  night  where  they  could  see 
each  other ;  that  the  deceased  pressed  for  a  fight ;  that  the 

52   (1883);    Riggs  v.  State,   30    Miss.  i  9  Tex.  App.  280  (1881). 

635  (185G);    State  v.  Boiuls,   2    Nev.  2  2  Nev.  265  (1866). 

265   (1866);    State    v.   Scott,   4    Ired.  3  gtate  v.  Howell,  9  Ired.  (N.  C.) 

(N.   C.)   L.    409    (1844);    Bonnard  v.  L.  485  (1849)  ;  State  r.  Scott,  4  Ired. 

State,  25  Tex.  App.  173  (1888)  ;  s.c.  8  (N.  C.)  L.  409  (1844). 

Am.  St.  Rep.  431  ;  7  S.  W.  Rep.  862 ;  *  State  v.  Howell,  9  Ired.  (N.  C.) 

Beltram    v.  State,  9    Tex.    App.   280  L.  485  (1849). 

(1881);  Harrison   v.   Commonwealth, 

79  Va.  374  (1884). 


86  HOMICIDE.  [chap.  V. 

prisoner  retreated  a  short  distance ;  when  the  deceased  over- 
took him,  the  prisoner  stabbed  him  with  some  sharp  instru- 
ment, which  caused  his  death,  and  that  at  the  time  of  this 
meeting  the  deceased  had  no  deadly  weapon,  it  was  hehl  to  be 
murder.^ 

In  the  case  of  People  v.  Sha}',^  the  deceased  and  another  were 
quarrelling,  and  the  defendant  interfered  and  struck  deceased; 
the  blow  was  returned  and  deceased  retreated,  followed  by 
the  prisoner ;  the  prisoner  secretly  opened  his  knife  and  was 
again  struck  by  deceased,  who  retreated ;  the  prisoner  then 
struck  him  with  a  knife;  deceased  again  fled,  the  prisoner 
again  pursuing;  K.  then  interfered  and  was  struck  at  with 
the  knife,  but  jumped  aside  to  avoid  it ;  the  prisoner  then 
followed  deceased,  whose  brothers  told  him  to  take  care  or 
he  would  be  killed,  and  as  he  turned  to  see  the  danger  the 
prisoner  drove  his  knife  into  his  skull,  causing  death.  The 
homicide  was  held  to  be  murder. 

Sec.  89.    Same  —  Prearrang-ed  quarrel  —  Mutual  malice. 

—  Where  a  person  prearranges  a  quarrel  with  another  with 
the  design  to  kill  him,  such  killing  will  be  murder.^  Thus  it 
has  been  held,  where  the  evidence  shows  that  the  defendant 
went  to  deceased's  barn  and  cursed  and  abused  him ;  that 
deceased  asked  him  if  he  came  there  to  make  a  fuss,  and 
defendant  said  he  had  and  that  he  intended  to  have  it,  and 
at  the  same  time  removed  his  coat ;  that  deceased  said  to  the 
bystanders,  "  Boys,  I  can't  stand  this  any  longer,"  and  threw 
off  his  coat  and  knocked  defendant  down  twice,  and  that 
in  the  scuffle  that  ensued  deceased  was  fatally  stabbed  by  the 
defendant  with  a  long-pointed  case-knife  which  he  carried  in 
a  scabbard  in  his  vest,  is  sufficient  to  sustain  a  verdict  of 
murder.* 

In  State  v.  Matthews,^  on  the  trial  of  ]\I.  and  H.  for  the 
murder  of  B.,  evidence  was  given  that  on  the  day  of  killing, 
H.  had  a  quarrel  with  B.  in  the  presence  of  M. ;  that  H.  said  in 
M.'s  presence  that  if  B.  would  fight  him  he  would  kill  him ; 

1  State  V.  Scott,  4  Ired.  (N.  C.)  L.  (1887)  ;  s.c.  7  S.  W.  Rep.  0^4 ;  State 
409  (1844).  V.  Matthews,  80  X.  C.  417  (1879). 

2  4  Park.  Cr.Cas.  (X.  Y.)  344  (18G0).  *  State  v.  McDaniel,  94  Mo.  (1887); 

3  State   V.   McDaniel,   94  Mo.   301  s.c.  7  S.  W.  Rep.  0.14. 

5  80  N.  C.  417  (1879). 


SEC.  90.]  IMUEDER.  87 

that  afterwards  B.  stopped  opposite  H.'s  house,  H.  and  M. 
apjproached  him,  and  H.  charged  B.  with  having  sworn  to  a 
lie  against  him,  and  called  upon  jSI.  to  step  up  and  prove  it, 
whereupon  M.  stej)ped  up,  was  knocked  down  upon  his  knees 
by  B.,  and  cried  out,  "  Boys,  don't  let  him  kill  me  "  ;  that  H. 
then  drew  a  pistol,  saying,  "  Take  care,  I'll  shoot  him,"  and 
M.  drew  a  knife  and  gave  B.  a  fatal  stab.  This  evidence  was 
held  to  show  a  common  design  and  express  malice  on  the  part 
of  both  M.  and  H. 

Sec.  90.  Same  —  Renewal  of  controversy.  —  If  a  person 
renew  a  quarrel  or  controversy  for  the  purpose  of  bringing 
on  a  deadly  conflict,  or  of  inflicting  serious  bodily  harm  upon 
his  antagonist,  the  homicide  will  be  murder.^  This  is  on  the 
principle  that  when  one  enters  into  a  deadly  conflict,  or  pro- 
duces the  occasion  for  it,  in  order  to  have  a  pretext  for  kill- 
ing his  adversary,  or  doing  him  great  bodily  harm,  the  killing 
will  be  murder,  no  matter  to  what  extremity  he  may  have 
been  reduced  in  the  combat.^  Thus  in  x\llen  v.  State,^ 
a  trial  for  murder,  the  defendant  set  up  self-defence,  and 
the  state  showed  that  deceased  had  sought  defendant,  and, 
drawing  a  pistol,  asked  him  if  he  had  threatened  to  kill  him. 
Defendant  denied  the  threat,  and  deceased  remarking,  '•  Then 
that  settles  it,"  put  up  his  pistol,  turned  his  back,  and  took 
several  steps  towards  a  neighboring  store,  when  defendant 
called  out,  "  We  had  as  well  settle  this  thing  now,"  and  firea 
at  deceased,  who  retired  into  the  store,  reappeared,  exchanged 
shots  with  defendant,  ag-ain  retired  into  the  store,  and  was 
manipulating  his  pistol,  which  appeared  to  be  out  of  order, 
when  defendant  again  fired  and  killed  him.  Shortly  before 
the  killing  the  defendant  had  inquired  as  to  the  whereabouts 
of  deceased,  saying  that  he  wanted  to  settle  with  him.     De- 

1  Allen  v.  State,  24  Tex.  App.  216  (1887)  ;  s.c.  5  S.  W.  Rep.  228;  White 
(1888);  s.c.  6  S.  W.  Rep.  187.  v.  State,  23  Tex.   App.   154   (1887); 

2  Adams  V.  People,  47  111.  .376  s.c.  5  S.  ^Y.  Rep.  164 ;  King  r.  State, 
(1868)  ;  Evans  v.  State,  44  Miss.  762  1.3  Tex.  App.  277  (1883)  ;  Reed  ;-. 
(1870);  State  v.  Partlow,  90  Mo.  608  State,  11  Tex.  App.  609  (1882)  ;  Har- 
(1880);  s.c.  4  S.  W.  Rep.  14;  State  rigan  &  T.  Self-Def.  227;  1  Hawk. 
V.  Hill,  4  Dev.  &  B.  (N.  C.)  L.  491  P.  C.  (Curw.  ed.)  §  18,  p.  87;  Id.  §  26, 
(1839) ;  Stewart  v.  State,  1  Ohio  St.  p.  97. 

66    (1852)  ;    Allen   v.  State,  24  Tex.  »  24   Tex.    App.   216   (1888) ;    s.c. 

App.  216  (1888)  ;   s.c.  6  S.  W.  Rep.     6  S.  W.  Rep.  187. 
187 ;  Peter  v.  State,  23  Tex.  App.  684 


88  HOMICIDE.  [chap.  V. 

fendant's  witnesses  testified  tliat  on  first  accosting  tlie  defend- 
ant the  deceased  covered  him  with  a  pistol,  and  that  long 
before  the  killing  the  deceased  had,  in  presence  of  bystanders, 
uttered  deadly  threats  against  the  defendant.  On  rebuttal, 
the  bystanders  denied  this.  One  witness  for  the  defendant 
testified  that  the  deceased,  after  turning  away,  turned  back 
and  said  he  would  see  defendant  again,  and  that  the  defend- 
ant then  said,  "  If  the  thing  is  to  be  settled,  it  may  as  well 
be  settled  now '' ;  and  the  deceased  fired  the  first  shot.  This 
evidence  was  held  to  show  that  the  deceased  had  abandoned 
the  controversy,  and  the  defendant  had  renewed  it,  in  order 
to  have  a  pretext  for  killing  the  deceased. 

In  State  v.  Boon,^  in  an  altercation  about  the  payment  of  an 
alleged  debt,  the  deceased,  promising  to  pay  when  he  got  the 
change,  the  defendant  threatening  to  whip  him  if  he  did  not 
do  so  then  and  there ;  the  deceased,  unarmed,  remonstrated 
with  the  defendant  and  expressed  friendship  for  him.  A  fight 
ensued  in  which  the  deceased  was  knocked  down.  They  were 
separated,  and  the  deceased  went  off.  The  defendant,  at  the 
request  of  a  witness,  put  up  his  pistol  which  had  been  drawn, 
promising  to  do  no  more.  But  the  defendant  followed  and  over- 
took the  deceased  and  engaged  in  another  fight.  Tlie  deceased 
crying  out,  "  Hold  him  off  me,"  and  the  defendant  killed  him 
with  a  deadly  weapon.     This  killing  was  held  to  be  murder. 

Sec.  91.  Same  —  Assault  by  one  of  the  slayers.  —  Where 
an  assault  is  made  with  intent  to  kill  or  do  great  bodily  harm, 
a  resulting  homicide  will  be  murder.  Thus  where  on  a  trial 
for  murder  the  evidence  of  the  prosecution  shows  that,  while 
the  deceased  was  walking  on  the  street  unarmed,  one  of  the 
defendants  fired  a  pistol  at  him  from  behind,  and  that  the 
deceased  then  seized  hold  of  him,  and  the  other  defendant 
came  out  of  a  building  and  shot  him  in  the  l)ack,  and  that 
then  the  first-named  defendant  shot  liim  in  the  neck,  killing 
.him,  such  evidence  does  not  tend  to  show  that  the  crime  was 
manslaughter,  or  that  it  was  excusable  or  justifiable.^  In 
State  V.  Chavis,-^  C.  and  two  others,  being  intoxicated,  and 
using  vulgar  and  profane  language,  met  the  deceased  quietly 

1  82  N.  C.  6H7  f  1880).  8  gO  N.  C.  323  (1879). 

2  Teople  V.  Ali  Kuiig,  49  Cal.  7  (1874). 


SEC.  93.]  MURDER.  89 

coming  along  a  public  road  and  assaulted  him,  he  using  a 
fence  rail  in  his  defence,  but  not  striking,  and  in  the  prog- 
ress of  the  tight  they  knocked  him  down  with  a  rail ;  he 
rose  up,  ran,  was  pursued  one  hundred  and  thirty  yards  by 
them,  stabbed  with  a  knife,  and  killed.  The  killing  was  held 
to  be  murder. 

But  it  is  otherwise  where  there  is  no  intent  to  harm.  Thus 
in  Simmerman  v.  State,^  on  a  trial  under  an  indictment  for 
murder,  it  appears  that  a  stranger  to  the  prisoner  entered  a 
room  where  the  latter  and  a  friend  were  seated,  went  imme- 
diately up  to  them  from  behind,  drew  a  revolver,  and  ordered 
them  to  throw  up  their  hands  and  consider  themselves  under 
arrest,  and  they  at  once  engaged  in  a  struggle  with  the  stran- 
ger, in  Avhich  he  was  shot.  The  court  held  that  there  was 
no  evidence  of  "deliberation"  or  "premeditation." 

Sec.  92.     Same  —  Cruel     or     inliiiinan     puiiishmeiit.  — 

Where  homicide  results  from  cruel  and  inhuman  punish- 
ment, malice  will  be  presumed  from  the  killing,  and  the 
crime  is  murder.  Thus  where  it  appeared  on  a  trial  for 
murder  that  the  prisoner,  a  person  standing  in  loco  parentis 
to  the  deceased,  a  boy  of  eighteen  years  of  age,  punished 
him  for  lying  by  keeping  him  naked  on  his  back,  with  his 
feet  tied  up,  from  morning  to  dinner  every  day  for  a  week, 
and  repeatedly  whipped  him  each  day  while  in  that  position, 
and  the  first  day  severely  whipped  him,  the  instruments  used 
being  a  heavy  leathern  strap,  a  knotted  cord  four-double,  and 
an  iron  ramrod,  and  death  ensued  therefrom,  the  court  held 
that  there  was  no  error  in  refusing  to  charge  that  in  the 
absence  of  express  malice  the  crime  would  be  only  man- 
slaughter, as  the  acts  detailed  manifested  "a  heart  totally 
regardless  of  social  duty  and  fatally  bent  on  mischief,"  and 
fully  proved  malice,  entirely  excluding  the  idea  of  passion.^ 

Sec.  93.    Same  —  Revenge  for  assault  upon  defendant's 

son.  —  A  father  was  informed  on  the  evening  of  one  day  that 
his  son,  a  small  boy,  had  been  wantonly  whipped  by  a  man. 
He  met  the  man  on  the  evening  of  the  next  day,  and  then 
with  his  fists  and  feet  beat  and  stamped  him,  while  he  was 

1  14  Neb.  568  (1883)  ;  s.c.  17  N.  W.  2  state  v.  Harris,  63  N.  C.  1  (1868). 

Rep.  115. 


90  HOMICIDE.  [chap.  V. 

unresisting,  with  so  much  violence  that  the  man  died  the 
next  night  from  the  effects  of  the  beating.  There  being  evi- 
dence of  deliberation,  this  was  held  to  be  murder.^ 

Sec.  94.    Same  —  Killing  wife's    paramour.  —  One   who 

suspected  his  wife  of  unfaithfulness  followed  her  stealthily 
as  she  was  going  to  a  neighbor's,  and  found  her  talking  with 
a  man  witli  whom  she  had  been  criminally  intimate.  She 
ran  off,  telling  her  paramour  to  run  also,  but  he  remained, 
and  the  husband  coming  up  inflicted  upon  him  with  a  stone 
and  knife  wounds  of  which  he  died.  This  was  held  to  be 
murder.^ 

Sec.  95.  Same  —  Mutual  combat.  —  Where  a  mutual 
agreement  is  made  with  deliberation  and  in  cool  blood  to 
engage  in  a  combat  with  deadly  weapons,  and  death  ensues, 
it  will  be  murder  in  the  slayer.^  In  such  a  case  the  party 
guilty  of  the  homicide  cannot  invoke  the  doctrine  of  self- 
defence,  or  claim  immunity  or  consideration  because  of  ill 
health  or  inferior  size.*  And  where  one  person  seeks  an- 
other with  the  purpose,  under  the  pretence  of  fighting,  to 
stab  him,  a  homicide  will  be  clearly  murder  in  the  assailant, 
no  matter  what  provocation  was  apparently  then  given,  or 
how  high  the  assailant's  passion  rose  during  the  combat,  for 
the  malice  is  express.^ 

In  a  case  where  a  prisoner  was  in  his  shop  cutting  a  child's 
hair,  when  the  deceased  came  to  the  door  and  made  some 
remark  to  some  one  in  the  shop,  and  the  prisoner  replied 
insultingly,  whereupon  the  deceased  said,  "I  can  whip  you," 
threw  off  his  coat,  advanced  two  steps  towards  the  prisoner 
and  threw  up  his  right  hand,  upon  which  the  prisoner,  to  scare 
him,  advanced  two  steps,  threw  up  his  right  hand,  and  thrust 
at  deceased  with  the  scissors  in  his  left  hand,  and  on  a  gen- 
eral scuffle  ensuing,  it  subsequently  appeared,  without  any  one 

1  McWhirt's  Case,  3  Gratt.  (Va.)  344  flSr.O)  ;  State  r.  Eoon,  82  N.  C. 
504  (184(5).  637  (1880)  ;  State  v.  Ilargett,  65  N.C. 

2  State  V.  Avery,  04  N.  C.  608  669  (1871);  State  v.  Lane,  4  Ired. 
0870).  (N.  C.)  L.  113  (1843)  ;  Roseborough 

8  Cates  V.  State,  50  Ala.  166  (1873);  r.  State,  21  Tex.  App.  672  (1887)  ;  s.c. 

Holland  v.  State,  12  Fla.  117  (1868);  1  S.  W.  Rep.  449. 

Thomas  r.  State,  61  Miss.  60  (1883);  <  Cates  v.  State,  50  Ala.  166  (187-3). 

State  V.  Unflerwond.  57  Mn.  40  (1874);  »  state  v.  Lane,  4  Ired.  (N.  C.)  L. 

People  V.  Shay,  4  Park.  Cr.  Cas.  (N.  Y.)  113  (1843). 


SEC.  97.]  MURDER.  91 

else  liaviiig  struck  the  deceased,  that  he  had  been  mortally 
wounded  by  a  stab  in  the  heart.  The  evidence  was  held  to 
support  a  verdict  of  murder.^ 

Sec.  96.    Same  —  Killing-  after    proposal   of    combat.  — 

Two  days  after  threatening  to  kill  deceased  on  sight  the  de- 
fendant met  him  and  proposed  a  fair  tight  without  weapons, 
which  the  deceased  refused,  whereupon  the  defendant  delib- 
erately shot  him.  The  deceased  had  at  the  time  an  axe  with 
which  he  was  chopping  wood,  but  made  no  motion  to  assault 
the  defendant.     The  homicide  was  held  to  be  murder.^ 

Sec.  97.  Same  —  Malice  presumed  to  continue  —  Provo- 
cation.—  Where  the  existence  of  deliberate  malice  in  the 
slayer  is  once  ascertained,  its  continuance  until  the  act  of 
killing  will  be  presumed,  unless  such  presumption  is  pre- 
cluded by  subsequent  facts  or  circumstances ;  ^  no  legal  pre- 
sumption arises  that  the  homicide  was  committed  upon  a 
fresh  provocation,  instead  of  the  antecedent  malice,  unless 
shown  by  surrounding  facts  and  circumstances.^ 

Provocation  never  disproves  malice ;  it  only  removes  the 
presumption  of  malice,  which  the  law  raises  without  proof. 
The  provocation  which  precedes  the  act  of  killing  is  to  be 
disregarded  when  a  deliberate  purpose  to  kill  on  the  part  of 
the  prisoner  is  ascertained,  unless  it  can  be  shown  that  this 
purpose,  was  abandoned  before  the  act  was  done ;  because 
where  provocation  intervenes  between  expression  of  malice 
and  killing,  the  presumption  is  that  the  killing  was  upon  the 
malice,  and  not  upon  the  passion  produced  by  the  provoca- 
tion.^ This  is  regarded  as  the  settled  law  in  the  courts  of 
England  at  this  day,  where,  in  consequence  of  the  numerous 

1  State  V.  Smith,  24  W.  Va.  814  Ired.  (N.  C)  L.  354  (1840) ;  s.c.  35 
(1884).  Am.  Dec.  742.     Compare  State  v.  Barn- 

2  Harrison  r.  Commonwealth, 70 Va.  well,  80  N.  C.  460  (1879);  McCoy  «. 
374  (1884).  State,  25  Tex.  33,  37  (1800);  s.c.  78 

3  See  State  v.  Tilly,  3  Ired.  (N.  C.)  Am.  Dec.  520. 

L.  424    (1843) ;    State   v.  Johnson,  1  &  State  v.  Johnson,  1  Ired.  (N.  C.) 

Ired.  (N.  ^.)  L.  354  (1840)  ;  s.c.  35  L.  354  (1840)  ;  s.c.  35  Am.  Dec.  742. 

Am.  Dec.  742.  See   State  v.  Ta-cha-na-tah,  04  N.  C. 

4  Pickens  v.  State,  61  Miss.  563  618  (1870)  ;  State  v.  Tilly,  3  Ired. 
(1884)  ;  Riggs  i'.  State,  30  Miss.  635  (N.  C.)  L.  439  (1843)  ;  State  v.  Curry, 
(1850)  ;  State  v.  Tilly,  3  Ired.  (N.  C.)  1  .Jones  (N.  C.)  L.  285  (1854)  ;  State 
L.  424   (1843) ;    State  v.  Johnson^  1  v.  Owen,  Phill.  (N.  C.)  L.  428  (1868). 


92  HOMICIDE.  [chap.  V. 

cases  which  call  for  the  exercise  of  great  legal  discrimination, 
precision  in  the  rule  on  this  subject  may  justly  be  expected. 
In  the  late  case  of  Keg.  v.  Kirkham,^  where  a  father  stood 
indicted  for  the  murder  of  his  son,  it  appeared  in  evidence 
that  the  act  of  killing  was  preceded  by  such  an  immediate 
act  of  provocation  as  would  extenuate  the  crime  to  man- 
slaughter, unless  malice  was  shown.  The  crime  was  com- 
mitted on  Saturday,  and  testimony  .was  given  of  threats  to 
kill  the  deceased,  uttered  by  the  prisoner  on  the  preceding 
Monday  and  Wednesday.  The  jury  was  instructed  that  the 
question  of  manslaughter  or  murder  depended  upon  the  fact 
whether  these  threats  were  the  mere  ebullitions  of  momentary 
anger,  or  the  expressions  of  a  deliberate  purpose;  "so  that  if 
they  believed  that  on  the  Monday  or  Wednesday  before  the 
prisoner  used  the  threats  deliberately,  then  all  the  quarrelling 
and  wrestling  might  be  dismissed  from  their  consideration." 

Sec.  98.    Killing  officer  in  discliarg^e  of  duty.  —  It  is  a 

general  rule  that  when  a  person  who  has  authority  to  arrest 
or  imprison,  while  using  the  proper  means  for  that  purpose, 
is  resisted  and  killed,  it  is  murder  in  all  who  take  part  in 
such  resistance  ;  ^  but  it  has  been  said  that  unless  the  slayer 
knows  the  official  character  of  the  deceased,  the  homicide  is 
only  manslaughter,  where  committed  without  deliberation.^ 
If  the  killing  was  clearly  malicious  and  premeditated,  the 
fact  that  the  officer  was  acting  under  a  void  process  is  no 
mitigation  or  excuse.^  The  same  is  true  if  the  defendant  had 
knowledge  that  the  intended  arrest  was  one  whicli  the  officer 
had  a  right  to  make  without  a  warrant ;  ^  or  if  the  subject- 
matter  was  within  the  jurisdiction  of  the  magistrate  issuing 
the  warrant,  even  though  the  latter  .  was  not  strictly  legal ;  ^ 


1  8  Car.  &  p.  115  (1837)  ;   s.c.  34  Mookabee  v.  Commonwealth,  78  K}'. 
Eng.  C.  L.  (uncnndenscd  edition)  640,  380  (1880). 

(condensed  edition)  318.  •»  State  v.  Spauldin<j,  34  Minn.  3G1 

2  Boyd  V.  State,  17  Ga.  194  (1855);  (1885)  ;  s.c.  25  N.  W.  Kep.  793;  State 
Rafferty  v.  People,  09  111.  Ill  (1873);  v.  McNally,  87  Mo.  044  (1885). 

s.c.  18  Am.  Hep.  001  ;  State  v.  Spauld-  ^  Xoles  v.  State,  2()  Ala/31  (1855). 

in^r,  34  Minn.  301  (1885)  ;  s.c.  25  N.W.  c  Boyd  v.  State,  17  Oa.  194  (1855). 

Rep.  793.  Compare    Rafferty    v.   People,   69    III. 

■•Fleetwood  v.   Commonwealth,  80  111    (1873);    s.c.   18   Am.   Rep.   601; 

Ky.  1  (1882);  s.c.  4  Am.  Cr.  Rep.  30;  Sinunernian    v.    State,    14    Neb.    568 

(1883)  ;   s.c.  17  N.  W.  Rep.  115, 


SEC.  98.]  MURDER.  93 

and  even  though  the  officer  was  exceeding  his  authority,  the 
use  of  a  deadly  weapon  is  not  justified  unless  defendant 
was  in  danger  of  death  or  great  bodily  harm.^  It  is  also 
murder  to  kill  an  enrolling  officer,  acting  under  federal 
authority,  by  assault  and  resistance  when  in  discharge  of  his 
duty.2 

An  escaped  convict  who  shoots  an  officer  attempting  to 
recapture  him  is  guilty,  of  murder,  because  there  is  neither 
excuse,  justification,  nor  extenuation.'^  It  has  been  said  that 
if  the  jirigoner  killed  the  deceased,  knowing  that  he  intended 
only  to  arrest  him  and  carry  him  before  a  justice  to  answer  a 
complaint  to  keep  the  peace,  he  will  be  guilty  of  murder,  not- 
withstanding the  intended  arrest  was  illegal.'^  In  State  v. 
Spaulding,^  upon  the  trial  of  the  defendant  for  killing  a  con- 
stable who  was  attempting  to  arrest  him,  witnesses  testified 
that  the  declaration  or  summons,  "  You  are  my  prisoner ; 
hands  up,"  was  made  by  deceased  in  the  first  instance,  and 
this  was  held  to  be  competent  evidence  of  a  sufficent  notifica- 
tion of  the  object  of  the  deceased,  especially  in  view  of  the 
fact  that  he  was  a  constable  acting  within  his  jurisdiction, 
and  that  it  was  not  necessary  for  him  to  have  exhibited  his 
warrant  before  makino-  the  arrest. 

It  is  said  in  Galvin  v.  State  ^  that  the  fact  that  an  officer  or 
citizen,  slain  in  attempting  to  make  an  arrest,  was  exceeding 
his  authority,  does  not  necessarily  reduce  the  killing  to  man- 
slaughter. The  party  sought  to  be  arrested  may  use  such 
reasonable  force,  proportioned  to  the  injury  attempted  upon 
him,  as  is  necessary  to  effect  his  escape,  but  no  more ;  and  he 
cannot  do  this  by  using  or  offering  to  use  a  deadly  Aveapon 
where  he  has  no  reason  to  apprehend  a  greater  injury  than  a 
mere  lawful  arrest. 


^  See   Galvin    v.   State,   6    Coldw.  This  does  not  include  service  in  rela- 

(Tcnn.)  283  (1869)  ;    Jones  v.  State,  tion  to    the    draft.     United    States  v. 

2(3  Tex.  App.  1  (1889)  ;  .s.c.  8  Am.  St.  Scott,  16  U.  S.  (3  Wall.)  642   (1865); 

Eep.  454 ;  9  S.  W.  Rep.  53.  bk.  18,  L.  ed.  218. 

-^  To  make  a  party  guilty  of  mur-  ^  Wallace    v.  State,  20  Tex.  App. 

der   under   the    Act   of    Congress    of  360  (1886). 

1864,    the   assault  or  resistance  from  ■*  Noles  v.  State,  26  Ala.  31   (1855). 

which  the  death  results,  must  be  an  5  34  Minn.  361   (1885)  ;  .s.c.  25  N. 

assault  or  resistance  of  a  person  en-  W.  Rep.  703. 

gaged  in  the   service  of   enrollment.  0  q  Coldw.  (Tenn.)  283  (1869). 


94  HOMICIDE.  [chap.  V. 

Ill  Jones  V.  State  ^  the  defendant  was  indicted  for  the  mur- 
der of  an  officer  while  resisting  arrest,  and  was  found  guilty 
of  murder  in  the  second  degree.  It  appeared  that  the  officer 
and  another  attempted  to  arrest  the  defendant  in  the  night- 
time, outside  of  the  officer's  county,  and  that,  on  defendant's 
refusing  to  go  with  him,  the  officer  drew  his  revolver  and 
fired  at  defendant  twice,  who  at  the  same  time  shot  once  at 
the  officer,  who  afterwards  died  from  the  wound  then  re- 
ceived. On  appeal  it  was  held  error  in  the  trial  court  to 
omit  or  refuse  to  charge  that  if  the  arrest,  even  if  lawful, 
was  made  in  such  manner  as  to  threaten  death  or  bodily 
harm,  the  killing  was  justifiable,  and  that  if  the  killing  was 
in  defence  against  an  illegal  arrest,  though  of  an  ordinary 
character,  the  offence  was  reduced  to  manslaughter. 

Sec.  99.    Killing  one  person  in  attempt  to  kill  another. 

—  Where  a  person  with  malice  aforethought  attempts  to  kill 
one  person,  but  by  mistake  or  misadventure  kills  another 
instead,  the  law  transfers  the  felonious  intent  to  the  object 
of  his  assault,  and  the  homicide  so  committed  is  murder.^ 
Thus  where  one  fires  into  a  crowd  intending  to  kill  one  per- 
son and  misses  him  and  hits  another,  he  is  guilty  of  an 
assault  with  intent  to  murder.^  The  supreme  court  of  Ken- 
tucky say  in  the  case  of  Golliher  v.  Commonwealth,^  that 
where  a  person  goes  into  a  crowd  for  the  purpose  of  kill- 
ing any  person,  and  voluntarily  fires  a  gun  for  that  purpose, 
the  unintentional  killing  of  a  friend  will  be  murder  ;^but  if 
he  goes  as  first  supposed,  and  the  firing  is  accidental  or  invol- 
untary, he  will  be  guilty  of  manslaughter.     And  the  supreme 


126   Tex.   App.  1    (1889);   s.c.   8  (1872);  s.c.  14  Am.  Rep.  380;  1  Gr. 

Am.  8t.  Rep.  454 ;  9  S.  W.  Rep.  53.  Cr.  Rep.  653.     See  Wills  v.  State,  74 

^Durham    v.    State,    70    Ga.    264  Ala.   21    (1883);    State   v.  Dugan,   1 

(1883)  ;    McPherson  v.  State,  22  Ga.  Iloust.  Cr.   Cas.   (Bel.)    563    (1879)  ; 

478  (1857);   State  v.  Gilman,  69  Me.  Golliher   v.    Commonwealth,   2    Duv. 

163  (1879);   s.c.  31    Am.   Rep.   257;  (Ky.)  163(1865);  State  r.  Raymond, 

3  Am.  Cr.    Rep.    15;  State  v.  Mont-  llXev.  98   (1876);  State   v.   Smith, 

gomery,  91  Mo.  52   (1886)  ;   s.c.  3  S.  2  Strobh.  (S.  C.)  L.  77  (1847), 

W.  Rep.  379;  State  t;.  I'ayton,  90  Mo.  3  state    v.    Gilman,    69    Me.    163 

220    (1886);   s.c.  2    S.  W.  Rep.   94;  (1879);   s.c.  31    Am.  Rep.  257.     See 

State  V.  Henson,  81    Mo.  384   (1884);  Walker  r.  State,  8  Ind.  290  (1856); 

Wareham   i-.   State,  25  f)hio  St.  601  State  v.  Batman,  42  N.  H.  490  (1861). 

(1874) ;   Angell  v.  State,  36  Tex.  542  «  2  Duv.  (Ky.)  163  (1865). 


SEC.  100.]  MURDER.  95 

court  of  Texas  say  in  the  case  of  Angel  v.  State  ^  that  when 
a  party  resisting  arrest  attempts  to  kill  the  officer,  while  the 
latter,  in  the  line  of  his  duty,  is  making  an  arrest,  but  by 
accident  kills  a  third  person,  such  killing  is  murder.  In 
State  V.  Raymond,^  the  prisoner  fired  a  loaded  pistol  at  a  per- 
son on  horseback,  and  declared  that  he  did  so  onl}-  with  the 
intention  to  cause  the  horse  to  throw  him,  and  the  ball  took 
effect  on  another  person,  and  jjroduced  his  death  ;  it  was  held 
that  the  crime  was  murder. 

Where  two  persons  engaged  in  a  shooting  affray,  with 
intent  to  kill  or  wound  each  other,  and  a  bystander  is  killed 
by  a  ball  from  the  pistol  of  one  of  them,  such  person  may  be 
contacted  for  the  murder  of  such  bystander,  although  he 
did  not  intend  him  any  harm.-^ 

Sec.  100.  Homicide  while  committing  felony.  —  A  homi- 
cide committed  or  caused  by  one  engaged  in  the  perpetration 
or  attempt  to  perpetrate  rape,  arson,  burglary,  or  robbery  or 
other  felony  is  usually  murder  ;  *  and  this  is  the  case  whether 
the  person  killed  is  the  one  upon  whom  or  whose  property 
the  attempt  is  made,  or  another  interfering  to  prevent  its 
success.^  Thus  if  several  persons  conspire  to  seize  by  force 
a  vessel,  and  run  away  with  her,  and  death  ensues  to  another 
party  opposing  the  design,  it  is  murder  in  all  who  are  present, 

1  36  Tex.  542  (1872)  ;  s.c.  14  Am.  of  accidental  liomicide.  State  v.  Shir- 
Rep.  380.  ley,  64  N.  C.  610  (1870). 

2  11  Xev.  98  (1876).  Wliere  on  a  trial  for  murder  the 
^  State    V.    Raj'mond,    11    Nev.   98     defendant  comes  within  the   descrip- 

(1876).  tion  of   N.  Y.  L.   1885,  c.  490,  §  2, 

*  See   Dill    v.   State,    25    Ala.    15  which  defines  as  tramps  "  persons  who 

(1854) ;    Adams    v.   People,    109    111.  rove  about  from  place  to  place,  beg- 

444  (1884);    s.c.    50   Am.    Rep.    617;  ging,  and  all  vagrants  living  without 

4  Am.Cr.  Rep.  351 ;  Kennedij  v.  State,  visible  means  of  support,  who    stroll 

107  Ind.  144  (1886)  ;  s.c.  57  Am  Rep.  over  the  country  without  lawful  occa- 

99;  6  N.  E.  Rep.  305.    Commonwealth  sion,"  there  being  no  dispute  as  to  the 

V.  Riley,  Thach.  Cr.  Cas.  (Mass.)  471  facts,  it  is  not  error  for  the  court  to 

(1837) ;  People  v.  Deacons,  109  N.  Y.  say  that  he  is  a  tramp,  rUhough  the 

374  (1888);   s.c.  16  N.  E.  Rep.  676;  offence  was  committed  within  ;•  month 

State  V.  Shirley,  64  N.  C.  610  (1870) ;  after  he  became  sixteen  years  of  age. 

Brooks  v.  Commonwealth,  61  Pa.  St.  People    v.   Deacons,    109    N.    Y.   374 

352  (1869).  (1888). 

An    instruction     that     "If   one    is  ^  dju  ,.,  state,  25  Ala.  15  (1854); 

about  to  do  an   unlawful  act,  and  a  Commonwealth  v.  Riley,  Thach.    Cr. 

third  party  interferes  to  prevent  it,  Cas.    (Mass.)    471    (1837);    United 

and  is  killed,  the  killing  is  murder,"  States    v.    Ross,    1    Gall.    C    C.    25 

is  erroneous,  because  it  includes  cases  (1813). 


96  HOMICIDE.  [chap.  V. 

aiding  and  abetting  in  the  taking  of  the  vessel ;  ^  or  if  men 
board  a  railway  train,  draw  deadly  weapons  upon  a  passenger, 
rob  him  and  by  threats,  intimidation  and  command,  cause 
him  to  jump  from  the  train  while  it  is  in  motion,  and  he  is 
thereby  killed,  it  is  murder.^ 

Where,  after  the  commission  of  robbery,  fresh  pursuit  was 
made  by  the  owner  of  the  stolen  money,  and  the  felons  over- 
taken, told  of  the  robber3%  that  they  were  suspected,  and 
must  return,  and  one  of  them  was  taken  hold  of;  he  told 
the  others  to  shoot  both  of  the  pursuers  ;  the  latter  shot 
at  both,  and  one  was  killed,  the  killing  was  held  to  be  mur- 
der.^ And  where  a  citizen  gave  chase  to  a  pickpocket  dis- 
covered plying  his  vocation,  and  was  shot  and  killed  by  the 
pickpocket,  it  was  held  to  be  murder.* 

Under  a  statute  ^  providing  that  "  any  tramp  who  shall 
enter  any  building  against  the  will  of  any  owner  or  occupant 
thereof,  under  such  circumstances  as  shall  not  amount  to 
burglary  ...  or  shall  threaten  to  do  any  injury  to  any  per- 
son, or  to  the  real  or  personal  property  of  another,  when  such 
offence  is  not  now  punishable  by  imprisonment  in  the  state 
prison,  shall  be  deemed  guilty  of  felony,"  where  it  appears  on 
a  trial  for  murder  that  the  defendant  entered  a  house  without 
permission  or  invitation  from  the  occupant,  and,  when  ordered 
to  depart,  remained  against  the  consent  of  such  occupant,  bar- 
ring her  exit  from  the  house  and  laying  his  hand  upon  her 
shoulder,  and  seizing  her  by  the  arm,  the  jury  was  warranted 
in  finding  that  there  was  a  threatened  personal  injury,  and 
that  the  defendant  was  engaged  in  the  commission  of  a  felony 
when  the  homicide  was  committed.^ 

Sec.  101.    Homicide  by  gross  misconduct  or  negrligence. 

—  Where  an  act  is  committed  heedlessly  without  any  mis- 
chievous intent,  and  death  ensues,  it  will  be  manslaughter;" 
because  carelessness  is  criminal  and,  Avithin   limits,  supplies 

1  United  States  v.  Ross,  1  •  Gall.  (1880)  ;  s.c.  57  Am.  Rep.  99;  G  N.  E. 
C.  C.  6-24  (181:3).  Rep.  305. 

2  Adams    v.    People,   109    111.   444  5  n.   y.   L.   1885,   c.   90,    §   4  ;    3 
(1884)  ;  s.c.  50  Am.  Rep.  617 ;  4  Am.  N.  Y.  R.  S.  (8th  ed.)  p.  2152,  §  4. 
Cr.  Rep.  351.  «  People  v.  Deacons,  109  N.  Y.  374 

8  Brooks  !•.  Conimonwealtli,  01  Pa.     (1888)  ;  s.c.  10  N.  E.  Rep.  676. 
St.  352  (1809).  ■  Ann  v.  State,  11  Humph.  (Tcnn.) 

*  Kennedy  r.   State,  107    Ind.   144     159(1850). 


SEC.  101.] 


MURDER. 


97 


the  place  of  criminal  intent ;  ^  and  gross  carelessness  result- 
ing in  injury  to  others,  is  criminal  even  in  those  cases  where 
the  act  done  is  legal.^  Homicide  by  gross  misconduct  or 
negligence  endangering  life  is  often  made  murder  by  express 
statutory  provision.^ 

It  is  murder  if  one  person  kills  another  by  recklessly  firing 
into  a  crowd,  though  without  intent  to  kill  a  particular  per- 
son ;  ■*  or  if  a  carriage  driver  sees  that  he  is  in  danger  of  run- 
ning over  a  little  child,  and  deliberately  drives  on  although 
at  a  moderate  pace,  he  is  guilty  of  murder,  if  the  child  is 
killed  in  consequence.-'^  Where  one  recklessly  throws  a 
billet  of  wood  into  the  street  thereb}^  causing  death  ;  ^  or 
recklessly  steers  a  vessel  or  drives  a  vehicle  so  as  to  cause 
death ; ''  or  recklessly  or  negligently  runs  dangerous  machinery 
and  death  results  therefrom ;  ^  or  recklessly  or  negligently 
points,  at  another  a  loaded  pistol  which  is  discharged  with 
fatal  effect ;  ^  or  points  a  gun  at  another  without  examining 
to  see  whether  it  is  loaded  and  it  goes  off  killing  the  party ;  ^^ 
or  negligently  fires  the  same  with  the  same  result ;  ^^  or  burns  a 


1  Sturges  V.  Maitland,  Anth.  (2d 
ed.)'208  (1813). 

-  Commonwealth  r.  Eodes,  6  B. 
Mon.  (Ky.)  174  (1845);  Ann  i-.  State, 
11  Humph.  (Tenn.)  159  (1850); 
United  States  v.  Freeman,  4  Mas.  C.  C. 
505  (18-27)  ;  Sturges  v.  Maitland, 
Anth.  (2d  ed.)  208  (1813)  ;  Rex  v. 
Trimmins,  7  Car.  &  P.  499  (1836)  ; 
s.c.  32  Eng.  C.  L.  728;  Rex  v.  Long, 
4  Car.  &  V.  398  (1830) ;  s.c.  19  Eng. 
C.  L.  672;  Rex  v.  Van  Butchell,  3 
Car.  &  P.  629  (1829)  ;  s.c.  14  Eng. 
C.  L.  752. 

3  See  Darry  t:  People,  10  N.  Y.  120 
(1854) ;  Lee  i-.  State,  1  Coldw.  (Tenn.) 
62  (1860). 

*  GoUihert'.  Commonwealth,  2  Duv. 
(Ky.)  163  (1865). 

5  Lee  V.  State,  1  Coldw.  (Tenn.)  62 
(1860). 

6  Moore  v.  State,  18  Ala.  532 
(1851). 

T  Reg.  V.  Swindall,  2  Car.  &  K.  230 
(1846)  ;  Reg.  v.  Taylor,  9  Car.  &  P. 
672  (1840)  ;  Rex  v.  Green,  7  Car.  &P. 


156  (18.35)  ;  Reg.  v.  Allen,  7  Car.  &  P 
153  (1835)  ;  1  East  P.  C.  231. 

8  People  I'.  Sheriff  of  Westchester 
Co.,  1  Park.  Cr.  Cas.  (N.  Y.)  659 
(1852).  See  United  States  v.  Warner, 
4  McL.  C.  C.  463  (1848);  Rex  v. 
Carr.  8  Car.  &  P.  163  (1837). 

^  State    V.    Hardie,    47    Iowa,  647 
(1878)  ;  s.c.  2  Am.  Cr.  Rep.  -326.    See 
Bizzell  V.  Booker,  16  Ark.  308  (1855) 
Collier  i:  State,  39    Ga.    31    (1869) 
Studstill  V.    State,   7    Ga.   2    (1849) 
State  V.  Vance,  17  Iowa,  138  (1864) 
Sparks    v.    Commonwealth,    3    Bush 
(Ky.)  Ill  (1867)  ;  People  v.  Fuller,  2 
Park.    Cr.  Cas.    (N.   Y.)    16    (1823); 
State  r.  Roane,  2  Dev.  (N.  C.)  L.  58 
(1828);    Reg.   v.   Campbell,    11   Cox 
C.  C.  323  (1869) ;  Reg.  v.  Hutchinson, 
9  Cox  C.  C.  555  (1864) ;  Reg.  v.  Archer, 
1  Fost.  &  F.  .351  (1857). 

1'^  State  J,-.  Smith,  2  Humph.  (Tenn.) 
457  (1842)  ;  Robertson  v.  State,  2  Lea 
(Tenn.)  239  (1879).  See  Reg.  r.  Jones, 
12  Cox  C.  C.  628  (1875). 

11  Reg.  V.  Jones,  12  Cox  C.  C.  628 
(1875). 


98  HOMICIDE.  [chap.  V. 

steamer  while  racing,  whereby  the  passengers  on  board  or 
some  of  them  lose  their  lives,  —  the  party  is  guilty  of  murder.^ 
And  if  a  seaman  is  in  a  state  of  disability  and  exhaustion  so 
that  he  cannot  go  aloft  without  danger  of  death  or  great 
bodily  injuries,  and  the  facts  are  known  to  the  master  of  the 
vessel,  but  notwithstanding,  he  compels  the  seaman  to  go 
aloft,  persisting  with  brutal  malignity  in  such  course,  and 
the  seaman  falls  from  the  mast  and  is  drowned  because  of 
such  misconduct  in  the  master,  the  latter  is  guilty  of  murder.^ 

Sec.  102.  Degrees  of  murder  distinguished.  —  At  com- 
mon law  there  were  no  degrees  or  divisions  of  the  crime  of 
murder;  but  in  the  United  States  the  statutory  provisions 
of  the  several  states  and  territories  divide  murder  into  two 
degrees,  and  in  some  states  into  one  or  more  lesser  degrees 
besides.  Under  the  federal  statutes,  however,  there  is  no 
such  designation  as  murder  in  the  first  degree  or  murder  in 
the  second  degree ;  a  punishment  is  provided  simply  for  the 
crime  of  wilful  murder,  which  punishment  is  death.^ 

As  a  rule  these  statutory  degrees  of  murder  are  distin- 
guished by  the  presence  or  absence,  as  the  case  may  be,  of 
a  single  element  in  the  crime.  Both  degrees  require  the  kill- 
in  o-  to  be  wilful;  and  both  require  it  to  be  with  malice  afore- 
thought. But  the  essential  element  of  murder  in  the  first 
degree,  which  is  not  present  in  the  second  degree  of  that 
crime,  is  the  premeditation  and  deliberation  upon  the  acts 
done  and  which  aggravate  the  crime  and  preclude  all  ideas 
of  justification,  excuse  or  mitigation.  As  these  degrees  of 
murder  are  usually  defined,  neither  of  them  differs  from  the. 
common  law  murder ;  but  courts  have  repeatedly  said  that  the 
apparent  object  of  these  statutory  discriminations  is  merely 
a  gradation  of  the  punishment  according  to  the  degree  of 
malice  and  malignity.^ 

1  Reg.  t;.  Tavlor,  9  Car.  &  P.  G72  ^  United   States  v.  Outcrbridge,  5 

(1840)  ;  s,c.  38  Eiig.  C.  L.  390.     See  Sawy.  C.  C.  (520  (1868). 
1  EastP.  C.  208;  Post.  263.    See  also  *  See  People  i'.  Haun,  44  Cal.   96 

State  y.  Sutton,  10  K.  I.  159  (1872);  (1872);  Stater.  Jones,  1   Houst.  Or. 

Steamboat   New  World    v.    Kinfr,    57  Cas.  (Del.)  21   (1857);  Weighorst  v. 

U.  S.  (16  How.)  409  (1853);  bk.  14  People,   7    Md.  442   (1855);    State  v. 

L.  ed.  1019.  Lessing,  16  Minn.  75  (1870). 

"  United  States  r.  Freeman,  4  Mas. 
C. C.  505  (1827). 


SEC.  102.]  MURDER.  99 

While  the  presumptions  of  malice  are  necessarily  presump- 
tions of  murder,  because  all  killing  is  murder,  yet  a  presump- 
tion of  malice,  either  from  the  act  of  killing,  the  weapon  or 
means  used,  raise  no  presumption  as  to  the  degree  of  murder, 
and  consequently  no  presumption  that  the  homicide  is  more 
than  the  lowest  degree  of  malicious  killing,  which  is  usually 
murder  in  the  second  degree.  A  higher  degree  of  guilt  can 
be  established  only  by  additional  proof  of  previous  delibera- 
tion, premeditation  or  reflection. ^ 

In  California  murder  is  the  unlawful  killing  of  a  human 
being  with  malice  aforethought,  either  express  or  implied. 
The  statute  ^  dividing  murder  into  two  degrees  did  not  define 
murder  anew,  but  simply  directed  the  nature  of  the  punish- 
ment to  be  according  to  the  aggi-avated  character  of  the 
crime.'^  To  constitute  murder  in  the  first  degree,  under  the 
statute,  the  unlawful  killing  must  be  accompanied  with  a 
clear  intent  to  take  life.  In  murder  of  the  second  degree 
there  is  an  absence  of  a  deliberate  and  fixed  purpose  to  kill, 
though  a  criminal  intent  is  present."* 

The  Delaware  statute  has  introduced  no  essential  change  in 
the  crime  of  murder  as  it  exists  at  common  law,  although 
when  the  crime  is  committed  with  express  malice  afore- 
thought it  is  murder  in  the  first  degree,  under  the  statute, 
and  when  committed  with  malice  implied  it  is  of  the  second 
degree,  under  the  statute.  This  distinction  is  merely  for 
the  purpose  of  discriminating  in  the  punishment.^ 

In  Iowa  it  has  been  held  that  where  several  persons,  armed 
and  prepared  to  resist  all  opposition,  seized  the  deceased, 
having  formed  the  design  to  take  his  life,  and  bound  him, 
and  avowing  their  purpose  to  take  his  life,  forced  him  to  the 
bank  of  a  river  and  cast  him  in,  and  then  stood  by  and  made 
no  effort  to  save  him,  when  by  reasonable  effort  they  might 
have  saved  him,  they  were  guilty  of   murder  in    the  first 

1  People   V.    Belencia,  21  Cal.  544  State,  2  Humph.  (Tenn.)  439(1841); 

(1863)  ;  Dukes  v.  States,  14  Fla.  499  Hambv  v.  State,  30  Tex.  523  (1872). 

(1874)  ;    Milton  v.  State,  6  Neb.  1.36  '-  Cal.  Act  1856. 

(1877);    Stokes  c.  People,  53   N.    Y.  3  People  r.  Haun,  44  Cal.  96  (1872). 

164  (1873)  ;  State  v.  Turner,  Wright  *  People    v.    Foren,    25    Cal.    301 

(Ohio)  20  (1831)  ;  Commonwealth  v.  (1804). 

Drum,  58  Pa.  St.  9  (1868)  ;  Dains  v.  5  State  v.  Jnnes,  1  Houst.  Cr.  Cas. 

(Del.)  21  (1857). 


100  HOMICIDE.  [chap.  V. 

degree,  under  the  statute.  But  if  their  design  was  to  commit 
personal  violence  on  the  deceased,  as  by  lynching  or  other- 
wise, and  not  to  take  his  life,  and  when  brought  to  the  bank 
of  the  river,  he  acting  under  a  well-grounded  ap^^rehension 
justified  by  the  circumstances  that  the  defendants  intended 
to  commit  violence  on  him,  or  to  take  his  life,  jumped  into 
the  river,  the  defendants  standing  by  and  not  offering  to 
rescue  him,  they  would  be  guilty  of  murder  in  the  second 
degree.-^ 

The  Maryland  act^  does  not  Create  a  new  offence  in  speak- 
ing of  murder  in  the  second  degree,  but  merely  establishes  a 
rule  to  guide  the  courts  in  awarding  the  punishment.^ 

In  Michigan  it  is  said  that  at  common  law  malice  afore- 
thought, to  constitute  murder,  need  not  be  deliberate ;  malice 
existing  before  the  act,  so  as  to  be  its  moving  cause  or  con- 
comitant, is  enough.  The  statutory  division  of  murder  into 
degrees  does  not  materially  change  its  common-law  elements ; 
the  line  of  division  being,  in  general,  between  cases  where 
the  malice  aforethought  is  deliberate  and  those  where  it  is 
not.* 

In  Minnesota  tlie  statute  dividing  murder  into  degrees  has 
created  no  new  offence,  but  merely  divided  the  common-law 
offence  into  different  degrees  based  upon  circumstances  miti- 
gating the  crime,  and  has  reduced  the  penalty  to  be  inflicted 
on  the  criminal  when  convicted  of  such  offence  as  so  modified. 
The  crime,  whatever  its  degree,  remains  the  same  in  nature 
and  name.  The  pleadings  are  not  tliereby  changed.  If  the 
indictment  charges  the  crime  in  terms  which  embrace  the 
highest  degree,  a  conviction  may  be  had  for  that  or  any  lesser 
degree  of  the  same  offence.'^ 

In  Missouri,  by  the  act  of  assembly  defining  murder  in  its 
different  degrees,  the  distinction  between  murder  in  the  first 
and  second  degree  lies  in  the  intention.  Where  a  homicide  is 
committed  and  an  intent  to  do  the  act,  and  no  circumstance  of 
excuse,  justification,  or  extenuation  recognized  by  law  exists, 

1  State  V.  Shclledy,  8  Iowa,  477  *  Nye  f.  People,  ;55  Mich.  10  (187G). 
(1859).                                                              See  People  v.  Potter,  5  Mich.  1  (1858). 

2  M(i.  Act,  1800,  c.  138.  ^  State    v.   Lessi.i},',    10    Minn.    75 
MVeighorst   i-.   State,   7    Md.   442     (1870).       See    State   v.   Stokely,    16 

(1855).  Minn.  282  (1871). 


SEC.  102.]  MURDER.  101 

it  is  murder  in  the  first  degree.^  Wilful  murder  with  malice 
and  premeditation  in  a  cool  state  of  blood  is  murder  in  the 
first  decree.  Murder  in  the  second  des^ree  is  a  wilful  kill- 
ing  committed  with  premeditation  and  malice,  but  without 
deliberation. 2 

In  Nevada  the  essential  difference  between  murder  in  the 
first  and  second  degrees  is  the  presence  of  wilful  deliberate 
premeditation  in  the  first  degree,  and  its  absence  in  the 
second.^ 

In  New  Hampshire  under  the  statute  ^  which  enacts  that  all 
murder  committed  by  poison,  starving,  torture,  or  other  delib- 
erate and  premeditated  killing,  or  committed  in  perpetrating, 
or  attempting  to  perpetrate,  arson,  rape,  robbery,  or  burglary, 
is  murder  in  the  first  degree ;  and  murder  not  of  the  first 
degree  is  of  the  second  degree;  the  legislature  did  not  intend 
that  killing  in  perpetrating  one  of  the  crimes  named  should 
be  murder  of  the  first  degree,  except  when  accompanied  by 
a  deliberate,  premeditated  design  to  kill ;  for  if  such  a  design 
had  been  a  necessary  ingredient  to  constitute  murder  of  the 
first  degree,  the  latter  part  of  the  section  woiild  have  been 
omitted.  The  meaning  of  the  section  is  "all  kinds  of  unlaw- 
ful killing  which  constituted  murder  at  common  law,  if  com- 
mitted by  poison,  starving,  torture,  or  other  deliberate  and 
premeditated  killing,  or  if  committed  in  perpetrating,  or 
attempting  to  perpetrate,  arson,  rape,  robbery,  or  burglary, 
constitute  under  this  statute  murder  in  the  first  degree ;  and 
all  other  kinds  of  unlawful  killing  which  constituted  murder 
at  common  law,  constitute,  under  this  statute,  murder  of  the 
second  degree."  ^ 

In  Pennsylvania  the  act  of  assembly  defining  murder  in  its 
different  degrees,  the  distinction  between  murder  in  the  first 
and  second  degrees,  lies  in  the  intention.  Where  a  homicide 
is  committed,  and  an  intent  to  do  the  act  is  shown,  and  no 
circumstances  of  excuse,  justification,  or  extenuation  recog- 
nized by  law  exists,  it  is  murder  in  the  first  degree.^     Under 

1  State    V.   riiillips,    24    Mo.    475  *  N.  H.  Gen.  St.,  c.  204,  §  1. 
(1857).  5  State  v.  Pike,  49  N.  H.  .S99  (1870). 

2  State?'.  Curtis,  70  Mo.  594(1870)  ;  6  Commonwealth  v.  Keeper  of 
s.c.  10  Cent.  L.  .T.  .S70.  Prison,   2    Ashm.    (Pa.)   227    (1838). 

3  State  V.  Raymond,  11  Nev.  98  See  State  v.  Phillips,  24  Mo.  475 
(1876).  (1857). 


102  HOMICIDE.  [chap.  V. 

this  statute  where  a  female  is  with  child,  and  a  potion  is 
administei^ed  to  her  for  the  purpose  of  destroying  the  child, 
which  produces  the  death  of  the  mother,  it  is  murder  in  the 
second  degree,  unless  there  existed  in  the  perpetrator  of  the 
mischief  an  intent  to  take  the  life  of  the  mother,  as  well  as 
to  destroy  her  offspring,  in  which  case  it  would  be  murder  in 
the  first  degree. ^ 

In  Tennessee  the  characteristic  quality  of  murder  in  the 
first  degree  and  which  distinguishes  it  from  murder  in  the 
second  degree,  or  any  other  homicide,  is  the  existence  at 
the  time  of  the  assault  of  a  settled  purpose  and  fixed,  delib- 
erate design  on  the  part  of  the  assailant  that  his  assault 
should  produce  death.  The  length  of  time  which  the  assail- 
ant deliberates  on  his  intention  is  not  material.^ 

In  Texas  the  "  premeditated  and  deliberate  "  killing,  under 
the  statute,^  is  where  the  act  is  not  the  sudden,  rash  concep- 
tion of  an  enraged  mind,  which  is  murder  in  the  second 
degree,  but  where  the  intention  to  kill  is  formed  before  the 
act  by  a  mind  sufficiently  cool  to  consider  of  the  act  about 
to  be  done ;  aiid  where  such  intention  to  kill  exists,  it  makes 
no  difference  that  it  is  formed  at  the  instant  and  is  evidenced 
only  by  the  manner  and  enormity  of  the  act,  nor  that  there 
was  danger,  — it  will  constitute  murder  in  the  fu'st  degree.* 

Sec.  103.  Same  —  First  degree.  —  Under  nearly  all  the 
statutes  which  divide  the  crime  of  murder  into  degrees,  mur- 
der in  the  first  degree  consists  in  the  wilful  killing  of  a 
human  being  with  malice  aforethought,  premeditation,  and 
deliberation,  in  the  peace  of  the  state.  Murder  committed 
by  means  of  poison,  or  by  lying  in  wait,  or  in  the  perpetra- 
tion, or  attempt  to  perpetrate,  rape,  arson,  burglary,  or  rob- 
bery is  generally  made  murder  in  the  first  degree.^ 

1  Commonwealth  v.  Keeper  of  St.  Rep.  o24 ;  4  So.  Rep.  103;  "Wil- 
Prison,  2  Ashm.  (Pa.)  2'27  (1888).  Hams  v.  State,  81  Ala.  1    (1880);  s.c. 

2  Swan  V.  State,  4  Humph.  (Tenn.)  1  So.  Hep.  179;  Smith  v.  State,  68 
1.3fl  (1843).  Ala.  424  (1880)  ;  Wasliington  v.  State, 

3  Tex.  Stat.  1848.  60  Ala.  10  (1877)  ;  Parley  v.  State,  59 

4  Atkinson  v.  State,  20  Tex.  522  Ala.  08  (1877);  Miller  v.  State,  54 
(1857).  Ala.  155  (1875);    Palmore    v.    State, 

5  See  Seams  v.  State,  84  Ala.  410  20  Ark.  248  (1874);  Rivens  r.  State, 
(1887)  ;  s.c.  4  So.  Pep.  521  ;  Lmi'/  v.  11  Ark.  455  (1850);  People  r.  Pezy, 
State,  Si   Ala.   1   (1887);    s.c.  5   Am.  73  Cal.  186(1887);  s.c.  14  Pac  Pep. 


SEC.  103.] 


MURDER. 


103 


On  a  trial  for  murder  it  is  proper  to  charge  that  "  murder 
in  the  first  degree  is  the  wilful,  deliberate,  malicious,  and  pre- 
meditated killing  of  a  human  being.  All  these  qualities  .  .  . 
may  be  grouped  under  the  phrase  'formed  design'  .  .  .  existed 
in  the  mind  of  the  defendant  for  but  one  moment  before  the 


687 ;  People  v.  Hamblin,  68  Cal.  101 
(1885)  ;  s.c.  8  Pac.  Rep.  867 ;  People 
V.  Guance,  57  Cal.  154  (1880) ;  People 
V.  Cotta,  49  Cal.  167  (1874) ;  People 
V.  Bealoba,  17  Cal.  389  (1861)  ;  State 
V.  Rhodes,  1  Houst.  Cr.  Cas.  (Del.) 
476  (1877)  ;  State  v.  Green,  1  Houst. 
Cr.  Cas.  (Del.)  217  (1866)  ;  State  v. 
Gardner,  1  Houst.  Cr.  Cas.  (Del.)  146 
(1864);  Irvin  v.  State,  19  Pla.  872 
(1883);  Dacey  v.  People,  116  111. 
555  (1886);  s.c.  6  N.  E.  Rep.  165; 
Henning  v.  State,  106  Ind.  386 
(1885)  ;  s.c.  6  N.  E.  Rep.  803 ;  7  N.  E. 
Rep.  4 ;  3Ioi/nih(m  v.  State,  70  Ind. 
126  (1880)  ;  s.c.  36  Am.  Rep.  178  ; 
Binns  v.  State,  66  Ind.  428  (1879)  ; 
Bechtelheinier  v.  State,  54  Ind.  128 
(1876)  ;  Ealinestock  v.  State,  23  Ind. 
231  (1864)  ;  State  v.  Sopher,  70  Iowa 
494  (1886);  s.c.  9  Cr.  L.  Mag.  218; 
30  N.  \V.  Rep.  917;  State  v.  Mahan, 
68  Iowa,  304.(1886);  s.c.  27  N.  W. 
Rep.  249  ;  State  v.  Wells,  61  Iowa,  629 
•(1883);  s.c.  47  Am.  Rep.  822;  State 
?;.  Kearley,  26  Kan.  77  (1881);  Craft 
V.  State,  3  Kan.  450  (1866)  ;  Smith  v. 
State,  1  Kan.  365  (1863) ;  Common- 
wealth V.  Devlin,  126  Mass.  253 
(1879) ;  Commonwealth  v.  Desmar- 
teau,  82  Mass.  (16  Gray)  1  (1860)  ; 
State  V.  Hoyt,  13  Minn.  132  (1868)  ; 
State  V.  Sneed,  91  Mo.  552  (1887)  ;  s.c. 
4  S.  W.  Rep.  411 ;  State  v.  Payton,  90 
Mo.  220  (1886)  ;  s.c.  2  S.  W.  Rep. 
394;  State  v.  McNaliy,  87  Mo.  644 
(1885)  ;  State  v.  Ilopkirk,  84  Mo.  278 
(1884)  ;  State  v.  Warner,  78  Mo.  644 
(1883)  ;,  s.c.  47  Am.  Rep.  131  ;  State 
V.  Harris,  76  Mo.  361  (1882)  ;  State  ;-. 
Curtis,  70  Mo.  594  (1879)  ;  s.c.  10 
Cent.  L.  J.  370 ;  State  v.  Hill,  69  Mo. 
451  (1879);  State  v.  Mahly,  68  Mo. 
315  (1878);  State  v.  Miller,  67  Mo. 
604  (1878)  ;  State  v.  Wieners,  6fi  Mo. 
13  (1877)  ;  State  v.  Jones,  64  Mo.  391 


(1877)  ;  State  v.  Foster,  61  Mo.  549 
(1876)  ;  State  v.  Harris,  59  Mo.  550 
(1875)  ;  State  v.  Holme,  54  Mo.  153 
(1873)  ;  State  v.  Starr,  38  Mo. 
270  (1866)  ;  State  v.  Green,  37  Mo. 
466  (1866)  ;  State  v.  Hicks,  27  Mo. 
588  (1859)  ;  State  v.  Shoultz,  25  Mo. 
128  (1857)  ;  State  v.  Nueslein,  25 
Mo.  Ill  (1857)  ;  State  v.  Jennings, 
18  Mo.  4.35  (1853)  ;  State  v.  Dunn,'^18 
Mo.  419  (1853)  ;  State  v.  Melton,  8 
Mo.  417  (1844);  State  v.  Dieckman, 
11  Mo.  App.  538  (1883);  State  i-. 
Lopez,  15  Nev.  407  (1880)  ;  Anderson 
V.  Territory  (N.  M.)  13  Pac.  Rep.  21 
(1887)  ;  Donelly  v.  State,  26  N.  J.  L. 
(2  Dutch.)  463  (1857)  ;  People  v. 
Deacons,  109  N.  Y.  374  (1888)  ;  s.c. 
16  N.  E.  Rep.  676 ;  People  v.  Beck- 
with,  103  N.  Y.  .360  (1886)  ;  s.c.  8 
N.  E.  Rep.  662;  People  v.  Cornetti, 
92  N.  Y.  85  (1883) ;  People  v.  Majone, 
91  N.  Y.  211  (1883)  ;  Buel  v.  People, 
78  N.  Y.  492  (1879)  ;  Shufflin  v.  Peo- 
ple, 62  N.  Y.  229  (1875)  ;  RuIofE  v. 
People,  45  N.  Y.  213  (1871);  People 
V.  Skeehan,  49  Barb.  (N.  Y.)  218 
(1867)  ;  Cox  v.  People,  19  Hun  (N.  Y.) 
430  (1879);  State  v.  Brown,  7  Oreg. 
186  (1879)  ;  State  v.  Garrand,  5 
Oreg.  216  (1874)  ;  Nevling  v.  Com- 
monwealth, 98  Pa.  St.  323  (1881)  ; 
Green  v.  Conmionwealth,  83  Pa.  St. 
75  (1876)  ;  Commonwealth  v.  Drum, 
58  Pa.  St.  9  (1868)  ;  Keenan  v.  Com- 
monwealth, 44  Pa.  St.  55  (1862); 
Kilpatrick  v.  Commonwealth,  31  Pa. 
St.*198  (1858);  Commonwealth  v. 
Williams,  2  Ashm.  (Pa.)  69  (1839)  ; 
Commonwealth  v.  Murray,  2  Aslmi. 
(Pa.)  41  (18.34);  Kelly  v.  Common- 
wealth, 1  Grant  Cas.  (Pa.)  484  (1858)  ; 
Wilson  r.  State,  11  Lea  (Tenn.)  310 
(1883)  ;  Bratton  v.  State,  10  Humph. 
(Tenn.)  103  (1849)  ;  Riley  v.  State, 
9  Humph.  (Tenn.)  646  (1849)  ;  Clark 


104 


HOMICIDE. 


[chap.  V. 


homicide,  that  in  law  would  be  sufficient."  ^  According  to  this 
definition  there  must  be  a  specific,  deliberate,  premeditated 
intention  to  take  life  unaccompanied  by  the  circumstances  of 
mitigation,  unless  the  killing  is  committed  in  the  perpetration, 
or  an  attempt  to  perpetrate,  the  felonies  mentioned  above.^ 

The  generally  accepted  meaning  of  the  word  "premedita- 
tion" is  a  prior  determination  to  do  the  act  in  question  ;^  but 
it  is  not  essential  that  this  intention  should  exist  for  any 
considerable  period  of  time  before  it  is  carried  out.  If  the 
determination  is  formed  deliberately  and  upon  due  reflection, 
it  makes  no  difference  how  soon  afterwards  the  fatal  resolve 
is  carried  into  execution.*  As  has  been  stated  above,  murder 
committed  by  means  of  poison,  or  by  lying  in  wait,  or  in  the 
perpetration,  or  attempt  to  perpetrate,  any  of  the  forcible 


V.  State,  8  Humph.  (Tenn.)  671  (1848); 
Swan  V.  State,  4  Humpli.  (Tenn.)  136 
(1843);  Dains  v.  State,  2  Humph. 
(Tenn.)  489  (1841);  Lewis  v.  State, 
3  Head  (Tenn.)  127  (1859)  ;  Anthony 
V.  State,  1  Meigs  (Tenn.)  265  (1838)  ; 
Dale  V.  State,  10  Yerg.  (Tenn.)  551 
(1837);  Mitcliell  v.  State,  5  Yerg. 
(Term.)  340  (1833)  ;  Burnham  v. 
State,  43  Tex.  322  (1875) ;  Farrer  v. 
State,  42  Tex.  265  (1875)  ;  Shelton 
V.  State,  .34  Tex.  662  (1871)  ;  Herrin 
r.  State,  33  Tex.  638  (1871);  John- 
son c.  State,  30  Tex.  748  (1868) ;  Ake 
r.  State,  30  Tex.  466  (1867)  ;  Osborne 
V.  State,  23  Tex.  App.  431  (1887)  ;  s.c. 
5  S.  W.  Rep.  251 ;  Giles  v.  State,  23 
Tex.  App.  281  (1887);  s.c.  4  S.  W. 
Rep.  886;  Musick  v.  State,  21  Tex. 
App.  69  (1887)  ;  Weaver  v.  State,  19 
Tex.  App.  547  (1886)  ;  s.c.  53  Am. 
Rep.  389 ;  Gonzales  v.  State,  19  Tex. 
App.  .394  (1886);  Campbell  v.  State, 
15  Tex.  App.  506  (1884):  Stanley  r. 
State,  14  Tex.  App.  315  (1884) ;  Diiran 
V.  State,  14  Tex.  App.  195  (1X84); 
Pharry.  State,7Tex.  App.472  (1880); 
Smith  V.  State,  7  Tex.  App.  414 
(1880)  ;  Drake  r.  State,  5  Tex.  App. 
649  (1879)  ;  Cox  r.  State,  5  Tex.  App. 
493  (1879)  ;  Summers  v.  State,  5  Tex. 
App.  .365  (1879)  ;  Tooney  v.  State,  5 
Tex.  App.  163  (1879);  Primus  r. 
State,  2  Tex.  App.  369  (1878)  ;  Wash- 


ington   V.    State,    1    Tex.   App.   647 

(1877)  ;  Singleton  r.  State,  1  Tex. 
App.  501  (1877);  Duebbe  v.  State,  1 
Tex.  App.  159  (1877);  McDaniel  *;. 
Commonwealth,  77  Va.  281  (1883)  ; 
Wright  V.  Commonwealth,  75  Va. 
914  (1882)  ;  Whitefonl  v.  Common- 
wealth, 6  Rand.  (Va.)  721  (1828)  ; 
Stale  V.  Robinson,  20  W.  Va.  713 
(1882);  s.c.  43  Am.  Rep.  799;  Clif- 
ford V.  State,  58  Wis.  477  (1883)  ;  s.c. 
16  N.  W.  Kep.  25;  Respublica  v. 
Mulatto  Bob,  4  U.  S.  (4  Dall.)  145 
(1795) ;  bk.  1  L.  ed.  776. 

1  Seams    v.    State,     84    Ala.    410* 
(1887);  s.c.  4  So.  Rep.  521. 

2  See  Felton  r.  United  States,  96 
U.  S.  (6  Otto)  699  (1877)  ;  bk.  24  L. 
ed.  875. 

8  See  Binns  v.  State,  66  Ind.  428 
(1879) ;  State  v.  Williams,  69  Mo.  110 

(1878)  ;  State  r.  Wieners,  66  Mo.  13 
(1877)  :  Schlencker  r.  State,  9  Neb. 
241  (1879)  ;  s.c.  1  N.  W.  Rep.  857. 

*  See  Seams  w?.  State,  84  Ala.  410 
(1887) ;  s.c.  4  So.  Rep.  521  :  Lnnrj  v. 
State,  84  Ala.  1  (1887)  ;  s.c.  5  Am".  St. 
Rep.  324;  4  So.  Rep.  193;  Miller  v. 
State,  54  Ala.  155  (1875);  Green  v. 
State,  .38  Ark.  .304  (1881);  McKenzie 
V.  State,  26  Ark.  .334  (1870);  McAdams 
r.  State,  25  Ark.  405  (1869);  People 
r.  Cottfi,  49  Cat.  16()  (1874) ;  People  r. 
Bealoba,  17  Cal.  389  (1861);  People 


SEC.  103.] 


MURDER. 


105 


felonies,  —  rape,  arson,  burglary,  or  robbery,  —  is  usually  made 
murder  in  the  first  degree ;  but  this  does  not  necessarily 
signify  that  all  killing  by  such  means  or  under  such  circum- 
stances is  murder  in  the  first  degree.  Such  a  statutory  pro- 
vision merely  defines  the  degree  of  the  murder  committed,  and 
does  not  make  the  offence  a  murder,  unless  it  would  be  such 
at  common  law.'  Thus  if  the  jjoison  be  administered  with 
malice,  it  is  murder  at  common  law,  and  therefore  murder  in 
the  first  degree  under  the  statute.  But  if  it  be  administered 
negligently,  it  is  only  manslaughter  at  common  law,  and  can- 
not be  made  more  by  a  statute  prescribing  that  murder  com- 
mitted by  means  of  poison  shall  be  murder  in  the  first  degree.^ 


V.Moore,  8  Cal.  90  (1857);  State  i-. 
Rhodes,  1  Houst.  Cr.  Cas.  (Del.)  47G 
(1877) ;  State  v.  Gardner,  1  Houst. 
Cr.  Cas.  (Del.)  146  (1864)  ;  Bailey  c. 
State,  70  Ga.  617  (1883) ;  Mitcliuin  v. 
State,  11  Ga.  615  (1852)  ;  Peri  i:  Peo- 
ple, 65  III.  17  (1872) ;  Binns  v.  State, 
66  Ind.  428  (1879);  Fahnestock  r. 
State,  23  Ind.  231  (1864) ;  State  i-. 
Decklotts,  19  Iowa  447  (1865)  ;  Craft 
I'.  State,  3  Kan.  450  (1866)  ;  Nichols 
V.  Commonwealth,  11  Bush.  (Ky.) 
575  (1875);  Woodsldes  v.  State,'  3 
Miss.  (2  How.)  655  (1837);  State  i-. 
Sharp,  71  Mo.  218  (1879)  ;  State  i-. 
Curtis,  70  Mo.  594  (1879);  State  v. 
Kilgore,  70  Mo.  546  (1879);  State 
V.  Hill,  69  Mo.  451  0879)  ;  State  v. 
Mitchell,  64  Mo.  191  (1876)  ;  State 
V.  Holme,  54  Mo.  153  (1873)  ;  State  v. 
Jennings,  18  Mo.  435  (1853);  State 
V.  Dunn,  18  Mo.  419  (1853) ;  State  v. 
Hays,  23  Mo.  287  (1856)  ;  Green  v. 
State,  13  Mo.  382  (1850)  ;  Milton  v. 
State,  6  Neb.  1.36  (1877)  ;  State  v.  Ah 
Mook,  12  Nev.  369  (1877) ;  Donelly 
V.  State,  26  N.  J.  L.  (2  Dutch.)  463 
(1857) ;  People  v.  Beckwith,  103  N.  Y. 
360  (1886)  ;  s.c.  8  N.  E.  Rep.  662  ;  Peo- 
ple V.  Kierimn,  101  N.  Y.  618  (1886)  ; 
s.c.  6  Am.  Cr.  Rep.  5.34;  4  N.  E.  Rep. 
130;  Leighton  v.  People,  88  N.  Y.  117 
(1882)  ;  People  r.  Sullivan,  7  N.  Y. 
397  (1852)  ;  Lanergan  v.  People,  50 
Barb.  (N.  Y.)  266  (1867)  ;  State  r. 
Lipsey,  3  Dev.  (N.  C.)  L.  485  (1832)  ; 
Shoemaker    v.    State,    12     Ohio,    43 


(1843);  Green  r.  Commonwealth,  83 
Pa.  St.  75  (1876)  ;  Commonwealth  v. 
Drum,  58  Pa.  St.  9  (1868);  Keenan 
r.  Commonwealth,  44  Pa.  St.  55 
(1862)  ;  Warren  v.  Commonwealth, 
37  Pa.  St.  45  (1860);  Kilpatrick  r. 
Commonwealth,  31  Pa.  St.  198  (1858)  ; 
Commonwealth  v.  Daley,  4  Pa.  L.  J. 
150  (1844)  ;  Lewis  v.  State,  3  Head 
(Tenn.)  127  (1859)  ;  Clark  v.  State, 
8  Humph.  (Tenn.)  671  (1848);  Swan 
V.  State, 4  Humph.  (Tenn.)  136  (1843); 
Dains  c.  State,  2  Humph.  (Tenn.)  43.9 
(1841)  ;  McQueen  v.  State,  1  Lea 
(Tenn.)  285  (1878);  Coffee  v.  State, 
3  Yerg.  (Tenn.)  283  (1832);  Burn- 
ham  l:  State,  43  Tex.  322  (1875) ; 
Duebbe  i\  State,  1  Tex.  App.  159 
(1877) ;  McDaniel  r.  Commonwealth, 
77  Va.  281  (1883)  ;  Wright  v.  Com- 
monwealth, 33  Gratt.  (Va.)  880  (1880); 
Hill  v.  Commonwealth,  2  Gratt.  (Va.) 
594  (1845)  ;  Whiteford  v.  Common- 
wealth, 6  Rand.  (Va.)  721  (1828); 
CiitTord  v.  State,  58  Wis.  477  (1883)  ; 
s.c.  16  N.  E.  Rep.  26.  Compare  Smith 
V.  State,  68  Ala.  424  (1880);  Bivens 
V.  State,  11  Ark.  455  (1850)  ;  Ander- 
son v.  State,  31  Tex.  440  (1868) ;  Ake 
r.  State,  .30  Tex.  466  (1867)  ;  s.c.  31 
Tex.  416  (1868). 

1  See  State  v.  Dowd,  19  Conn.  388 
(1849) ;  Bechtelheimer  i-.  State,  54 
Ind.  128  (1876) ;  State  v.  Wagner,  78 
Mo.  644  (1883)  ;  s.c.  47  Am.  Rep.  131 ; 
Rhoads  v.  Commonwealth,  15  Pa.  St. 
272    ( 1850 )  ;    Souther    v.   Common- 


106  HOMICIDE.  [chap.  V. 

And  the  same  is  true  in  the  case  of  lying  in  wait  merely  to 
commit  a  trespass.  In  such  a  case  an  accidental  killing-  is  only 
manslaughter  at  common  law,  and  therefore  not  murder  in 
the  first  degree  under  such  statutory  provision.  And  courts 
have  said  that  homicide  committed  by  means  of  lying  in  wait 
or  by  poisoning  is  murder  in  the  first  degree,  for  the  sole 
reason  that  the  use  of  such  means  with  which  to  accomplish 
the  homicide  is  evidence  of  express  malice  on  the  part  of  the 
person  using  them.  When  this  evidence  of  malice  is  rebutted, 
the  homicide  is  not  murder  in  the  first  degree. ^  So,  also,  of 
the  forcible  felonies  mentioned  in  the  statutes.  While  ordi- 
narily a  homicide  committed  in  the  perpetration,  or  attempt 
to  perpetrate,  any  of  the  forcible  felonies  would  ordinarily 
be  a  murder  at  common  law,  yet  in  any  case  where  it  was 
not,  it  would  not  be  murder  in  the  first  degree  witliin  the 
provisions  of  such  statutes.^ 

These  are  the  ge.ieral  rules  of  construction  of  the  usual 
statutory  provisions  defining  murder  in  the  first  degree  ;  but 
the  statutes  are  not  uniform,  either  in  phraseology  or  in  mean- 
ing, and  consequently  each  has,  to  a  greater  or  less  degree, 
its  own  peculiar  significance  and  construction,  and  cannot  be 
placed  or  classified  under  any  arbitrary  rule.  Reference  must 
be  had  in  each  instance  to  the  language  of  the  particular 
statute  under  consideration.-^ 


wealth,  7   Gratt.    (Va.)   678    (1851);  Giles   v.   State,    23    Tex.    App.    281 

Commonwealth     v.    Jones,     1     Leigh  (1887)  ;  s.c.  4  S.  W.  Rep.  880 ;  Gon- 

(Va.)  610  (1829).  zales    v.    State,    19    Tex.    App.    394 

1  See  Kiley  v.  State,  9  Humpli.  (1886) ;  Stanley  r.  State,  14  Tex. 
(Tenn.)  64(3  (1849);  Osborne  r.  State,  App.  315  (1884);  Duran  v.  State,  14 
23  Tex.  App.  431  (1887)  ;  s.c.  5  S.  W.  Tex.  App.  195  (1884) ;  Pharr  i-.  State, 
Rep.  251.  7    Tex.    App.    472    (1880);  Singleton 

2  State  V.  Dowd,  19  Conn.  388  v.  State,  1  Tex.  App.  501  (1877). 
(1849);  State  r.  Earnest,  70  Mo.  520  3  g^e  Lan^  v.  State,  84  Ala.  1 
(1879)  ;  Commonwealth  v.  Hanlon,  3  (1887);  s.c.  5  Am.  St.  Rep.  324;  4 
Brewst.  (Pa.)  461  (1870);  s.c.  SPliila.  So.  Rep.  193;  ]VasI,im/ton  v.  State,  60 
(Pa.)  401;  Commonwealth  v.  Jones,  Ala.  10(1877);  s.c.  31  Am.  Rep.  28; 
1  Leigh  (Va.)  610  (1829).  See  Shore  3  Am.  Cr.  Rep.  171;  Palmore  v. 
V.  State,  6  Mo.  640  (1840);  Cox  v.  State,  29  Ark.  248  (1874);  People  v. 
People,  80  N.  Y.  500  (1880);  Buel  v.  Bealoba,  17  Cal.  389  (1861);  Irvin 
People,  78  N.  Y.  492  (1879);  State  v.  State,  19  Fia.  872  (1883);  Mo;/nl- 
V.  Brown,  7  Greg.  186  (1879).  Com-  han  v.  State,  70  Ind.  126  (1880)  ;  s.c. 
pare  State  v.  Hopkiik,  84  Mo.  278  36  Am.  Rep.  178;  Presley  v.  State, 
(1884)  ;  People  v.  Van  Steenburgh,  59  Ala.  98  (1877)  ;  State  v.  Sophcr, 
1  Park.  Cr.  Cas.  (N.  Y.)  39  (1845);  70   Iowa  494    (1886);  s.c.   9   Cr.    L. 


SEC.  103.] 


MURDER. 


107 


Where  it  appears  that  the  accused  had  time,  not  only  to 
form  a  purpose,  but  to  announce  his  intention  to  the  person 
killed,  and  then  carry  it  into  effect,  it  is  proof  of  premedita- 
tion and  deliberation  suthcient  to  constitute  murder  in  the  first 
degree. 1  And  one  who  kills  another  by  administering  poison, 
with  intent  only  to  stupefy  him,  that  he  may  lawfully  ob- 
tain possession  of  his  property,  is  guilty  of  murder  in  the 
first  degree.^  But  where  one  administers  cantharides  to  a 
woman  with  intent  to  excite  her  passions  so  as  to  induce  con- 
sent to  sexual  intercourse,  and  without  intending  to  kill,  is 


Mag.  218;  SON.  W.  Rep.  917;  State 
V.  Malion,  68  Iowa  304  (1880) ;  s.c. 
27  N.  W.  Rep.  249;  State  v.  Wells,  61 
Iowa,  629  (1883);  s.c.  47  Am.  Rep. 
822;  17  N.  W.  Rep.  90;  State  r. 
Kearley,  26  Kan.  77  (1881)  ;  Craft  v. 
State,  3  Kan.  450  (  1866  )  ;  Smith 
V.  State,  1  Kan.  365  (1863);  Com- 
monwealth V.  Devlin,  126  Mass.  2-33 
(1879)  ;  Commonwealth  v.  Desmar- 
teau,  82  Mass.  (16  Gray)  1  (I860); 
State  V.  Hoyt,  13  Minn.  132  (1868)  ; 
State  V.  Sneed,  91  Mo.  552  (1887)  ; 
s.c.  4  S.  W.  Rep.  411 ;  State  y.  Payton, 
90  Mo.  220  (1886)  ;  State  v.  Mc-Nally, 
87  Mo.  644  (1885);  State  v.  Harris, 
76  Mo.  .361  (1882)  ;  State  v.  Curtis,  70 
Mo.  594  (1879)  ;  s.c.  10  Cent.  L.  J. 
370;  State  v.  Hill,  69  Mo.  451  (1879); 
State  V.  Wieners,  06  Mo.  13  (1877)  ; 
State  V.  Green,  37  Mo.  466  (1806)  ; 
State  V.  Kueslein,  25  Mo.  Ill  (1857)  ; 
State  V.  Melton,  8  Mo.  417  (1844)  ; 
State  V.  Dieckman,  11  Mo.  App.  538 
(1883)  ;  Milton  v.  State,  6  Neb.  136, 
143  (1877)  ;  Donelly  v.  State,  26  N.  J. 
L.  (2  Dutch.)  463  (1857);  confirmed 
in  error,  26  N.  J.  L.  (2  Dutch.)  601 ; 
State  V.  Lopez,  15  Nev.  407  (1880) ; 
People  r.  Deaeons,  109  X.Y.  374  (1888); 
s.c.  16  N.  E.  Rep.  676 ;  People  v.  Beck- 
with,  103  N.  Y.  360  (1886);  s.c.  8' 
N.  E.  Rep.  662  ;  3  N.  Y.  St.  Rep.  759 ; 
People  V.  Majone,  91  N.  Y.  211 
(1883)  ;  Buel  v.  People,  78  N.  Y.  492 
(1879)  ;  Shufflin  i-.  People,  62  N.  Y. 
229  (1875);  People  i-.  Skeehan,  49 
Barb.  (N.  Y.)  217  (1867);  Cox  v. 
People,  19  Hun  (N.  Y.)  430  (1879) ; 


State  V.  Garrand,  5  Oreg.  216  (1874)  ; 
State  V.  Brown,  7  Oreg.  186  (1879)  ; 
Nevling  v.  Commonwealth,  98  Pa.  St. 
323  (1881);  Green  v.  Commonwealth, 
83  Pa.  St.  75  (1876) ;  Commonwealth 
V.  Drum,  58  Pa.  St.  9  (1868)  ;  Com- 
monwealth V.  Williams,  2  Ashm.  (Pa.) 
69  (1839);  Kelly  v.  Commonwealth, 
1  Grant  Cas.  (Pa.)  484  (1858);  Brat- 
ton  V.  State,  10  Humph.  (Tenn.)  103 
(1849);  Riley  v.  State,  9  Humph. 
(Tenn.)  646  (1849)  ;  Clark  v.  State, 
8  Humph.  (Tenn.)  671  (1848)  ;  Wil- 
son V.  State,  11  Lea  (Tenn.)  310 
(1883);  Mitchell  v.  State,  5  Yerg. 
(Tenn.)  340  (1883);  s.c.  8  Yerg. 
(Tenn.)  514;  Burham.  v.  State,  43 
Tex.  .322  (1875);  Johnson  r.  State, 
30  Tex. 748  (1868) ;  Osborne  r.  State, 
23  Tex.  App.  431  (1887)  ;  s.c.  5  S.  W. 
Rep.  251  ;  Giles  v.  State,  23  Tex. 
App.  281  (1887);  s.c.  4  S.  W.  Rep. 
886;  Musick  v.  State,  21  Tex.  App. 
69  (1887) ;  Gonzales  r.  State,  19  Tex. 
App.  .394  (1886)  ;  Stanley  ;■.  State, 
14  Tex.  App.  315  (1884);  Duran  v. 
State,  14  Tex.  App.  195  (1884); 
Pharr  v.  State,  7  Tex.  App.  472 
(1880)  ;  Tooney  v.  State,  5  Tex.  App. 
163  (1879)  ;  Singleton  v.  State,  1  Tex. 
App.  501  (1877)  ;  Slate  v.  Eobinson, 
20  W.  Va.  713  (1882)  ;  43  Am.  Rep. 
799 ;  Respublica  r.  Mulatto  Bob,  4 
U.  S.  (4  Dall.)  145  (1795)  ;  bk.  1,  L. 
ed.  776. 

1  People  V.  Kiernan,  101  N.  Y.  618 
(1886)  ;  s.c.  6  Am.  Cr.  Rep.  534. 

2  St.Tte    V.    Wagner,    78    Mo.    044 
(1883)  ;  s.c.  47  Am.  Rep.  131, 


108  '  HOMICIDE.  [chap.  V. 

not  guilty  of  murder  in  the  first  degree,  although  she  dies 
from  the  effects  of  the  drug.^ 

Sec.  104.  Same  —  Illustrations.  —  In  Alabama  the  code 
declares 2  "every  homicide  perpetrated  by  poison,  lying  in 
wait,  or  any  other  kind  of  wilful,  deliberate,  malicious,  and 
premeditated  killing,"  etc.,  to  be  murder  in  the  first  degree. 
Under  this  statute  if  the  defendant  j^urposely  killed  the 
deceased,  after  reflection,  with  a  wickedness  or  depravity  of 
heart  towards  the  deceased,  and  the  killing  was  determined 
on  beforehand,  even  a  moment  before  the  fatal  blow  was 
struck,  he  is  guilty  of  murder  in  the  first  degree.^  In  the 
case  of  Washington  v.  State  ^  the  defendant  was  tried  on  an 
indictment  for  murder  under  a  statute  ^  declaring  that  "  every 
homicide  perpetrated  by  any  act  greatly  dangerous  to  the 
lives  of  others,  and  evidencing  a  depraved  mind  regardless  of 
human  life,  although  without  any  preconceived  purpose  to 
deprive  any  particular  person  of  life,  is  murder  in  the  first 
degree,"  there  was  evidence  that  the  homicide  was  committed 
by  firing  a  pistol  at  night,  through  a  window  of  a  lighted 
room,  in  which  four  persons  were  sitting  around  the  fire. 
On  appeal  it  was  held  that  an  instruction  asked  by  the  pris- 
oner, that  if  he  did  not  intend  to  kill  or  shoot  at  any  of  the 
inmates,  but  merely  intended  to  frighten  them,  he  was  not 
guilty  of  any  higher  offence  than  manslaughter  in  the  second 
degree,  was  properly  refused. 

In  Arkansas  under  a  statute  defining  murder  as  a  "  mali- 
cious killing,"  it  is  not  necessarily  murder  in  the  first  degree. 
It  must  also  be  wilful,  deliberate,  and  premeditated,  or  com- 
mitted in  the  attempt  to  perpetrate  some  one  of  the  felonies 
described  in  the  statute.^ 

In  California,  murder  in  the  first  degree  consists  of  wilful, 
premeditated,  unlawful  killing.  The  intent  to  kill  must 
exist,  and  may  be  proved  from  circumstances,  though  it  need 
not  have  existed  for  any  length  of  time   before  the  act ;  be- 

1  Reclitolhcimer  v.  State,  54  Ind.  4(30  Ala.  10  (1877);  s.c.  31  Am. 
128  (187(i).  Rep.  28  ;  ;5  Am.  Cr.  Rep.  171. 

2  Ala.  Code  §  .3725.  o  Ala.  Code  §  4295. 

3  Lang  V.  State,  84  Ala.  1  (1887);  «  Palmore  v.  State,  29  Ark.  248 
s.c.  5  Am.  St.  Kep.  ;]24;  4  So.  Rep.  (1874). 

193. 


SEC.  104.]  MURDER^  109 

cause  it  is  sufficient  if  it  be  fonued  upon  the  instant,  if  the 
killing  be  unjustified.  Murder  in  the  commission  of  a  felony 
is  of  the  first  degree,  though  no  intent  to  kill  existed  at  the 
time  of  the  act.^ 

In  Florida  it  has  been  held  that  where  the  accused,  being 
armed  with  a  concealed  pistol,  walked  up  to  the  deceased  and 
intending  to  kill  him,  did  shoot  and  kill  him  with  the  pistol 
aforesaid,  he  is  guilty  of  murder  in  the  first  degree.^ 

In  Indiana  one  who  unintentionally  kills  another  in  attempt 
at  robbery  is  guilty  of  murder  in  the  first  degree,  under  a 
statute  making  it  murder  in  the  first  degree  to  kill  any  person 
in  an  attempt  to  commit  a  robbery.^  And  if  a  train  of  rail- 
road cars  is  thrown  from  the  track  by  obstructions  wrongfully 
placed  upon  it,  and  a  human  being  is  killed,  the  person  com- 
mitting the  act  is  guilty  of  murder  in  the  first  degree.^ 

In  Iowa  it  has  been  held  that  where  a  defendant,  at  a  time 
when  he  was  excited,  if  not  intoxicated  by  liquor,  engaged 
in  a  fight  and  killed  his  opponent,  a  verdict  of  murder   in 
the   first    degree    cannot   be   sustained,    where    there   is    no 
evidence  tending  to  show  that  before  the  conflict  commenced 
there  was  an  instant  of  time  for  premeditation  and  delibera- 
tion.^    Where    a  drug   is    administered  for   the    purpose   of 
effecting  an  illegal  object  and  the  person  to  whom  the  drug 
is  administered  dies  from  the  efifects  thereof,  it  is  murder  in 
the  first  degree  ;  thus  where  prisoners  in  the  state  peniten- 
tiary, for  the  purpose  of  making  their  escape,  administered 
.  chloroform  to  one  of  the  guards,  from  the  effects  of  which 
he  died,  they  were  held  guilty  of  murder  in  the  first  degree.*^ 
In  Kansas  murder,  as  defined  at  common  law,  is  divided 
into   two    decrees.     To    constitute    murder   within  the  first 
degree,  as  defined  by  the  statute,  the  crime  must  be  premedi- 
tated and  deliberate ;   that  is,  the   murderer   must  not  only 
plan,  contrive,  and  scheme  as  to  the  means  and  manner  of 
the  commission  of  the  deed,  but  he  must  consider  and  weigh 

1  People   V.   Bealoba,  17   Cal.   389  ^  state    v.    Sopher,    70    Iowa,  404 

(1861).  (1886);   s.c.   9  Cr.  L.   Mag.  218,   30 

•^  Irvin  V.  State,  19  Fla.  872  (1883).  N.  W.  Rep.  917. 

3  Moynilian    v.    State,   70  Ind.  126  «  State    v.    Wells,    61     Iowa,   629 
(1880)  ;  s.c.  36  Am.  Rep.  178.  (1883);    s.c.   47    Am.   Rep.   822;    17 

4  Tresley    v.     State,    59    Ala.    98  N.  W.  Rep.  90. 
(1877). 


110  HOMICIDE.  [chap.  V. 

different  means  of  accomplishing  it.^  "Where  one,  armed 
with  a  pistol,  goes  to  meet  another,  with  the  deliberate  inten- 
tion of  committing  homicide  if  the  other  fails  to  retract  cer- 
tain words  used,  and  an  affray  ensues,  during  which  such 
other  is  killed,  the  crime  is  murder  in  the  first  degree  under 
the  statute. 2  Where  there  is  no  pretence  that  the  killing  in 
question  was  done  by  poison  or  lying  in  wait,  or  in  the  attempt 
to  commit  any  other  crime  mentioned  in  the  statute  defining 
murder  in  the  first  degree,  the  killing  must  have  been  wilful, 
deliberate,  and  premeditated,  in  order  to  constitute  murder  in 
the  first  degree,  and  such  deliberate  and  premeditated  will  or 
intent  to  kill  must  be  alleged  in  the  indictment.^ 

In  Massachusetts,  at  the  trial  on  an  indictment  for  the  mur- 
der of  a  woman,  evidence  that  the  defendant,  who  was  her 
husband,  caused  her  death  by  beating,  stamping,  and  jumping 
upon  her  person,  and  kicking  upon  vital  portions  of  her  pros- 
trate body,  and  that  these  acts  were  repeated  at  intervals 
during  the  day,  by  reason  of  which  she  suffered  prolonged 
agony  before  death,  will  justify  the  jury  in  finding  that  the 
defendant  was  guilty  of  murder  committed  with  extreme 
atrocity  and  cruelty,  and  consequently  of  murder  in  the  first 
degree,  under  the  Massachusetts  statute.*  The  murder  of  a 
girl  of  eight  years  in  order  to  conceal  a  rape  perpetrated 
with  severe  lacerations,  is  "murder  committed  with  extreme 
atrocity  and  cruelty,"  and  therefore  murder  in  the  first  degree, 
although  the  only  means  of  death  alleged  in  the  indictment 
were  blows  upon  the  head  and  face  and  drowning.^ 

In  Minnesota,  if  the  intention  to  kill  is  formed  before  the 
'•haat  of  passion,  upon  sudden  provocation,  or  sudden  com- 
bat," or  though  formed  in  the  heat  of  passion,  is  executed 
after  sufficient  cooling  time,  or  after  the  heat  of  passion  has 
subsided,  it  is  murder  in  the  first  degree  within  the  meaning 
of  the  statute.^ 

In  Missouri  the  statute  provides"  that  "every  murder"  com- 
mitted in  an  attem[)t  to  commit  a  felony,  shall  be  deemed 

^  Craft  V.  State,  3  Kans.  450  (1800).  ^  Commonwealth  r.  Desmarteau,  82 

2  State  r.  Kearley,  20  Kan. 77(1881).  Mass.  (10  Gray)  1  (18G0). 

3  Smith  r.  State,  1  Kan.  305  (1868).  e  Minn.  Gen.   St.   598,  §   12.     See 
<  Mass.  Gen.  St.,  c.  100,  §  1.     See  State  v.  Hoyt,  13  Minn.  132  (1868). 

Commonwealtii  v.  Devlin,  126    Mass.  "  Mo.  Kev.  St.  §  1232. 

253  (1879). 


SEC.  104.]  MURDER.  Ill 

murder  in  the  first  degree,  means  that  any  homicide  so  com- 
mitted is  murder  in  the  first  degree.^  Deliberation  is  necessary 
in  order  to  constitute  a  homicide  murder  in  the  first  degree 
under  the  statute.^  Deliberation  does  not  mean  brooded  over, 
considered,  reflected  on  for  a  AA^eek,  a  day,  or  an  hour ;  but  it 
means  an  intent  to  kill,  executed,  not  under  the  influence  of 
a  violent  passion  suddenly  aroused,  amounting  to  a  tempo- 
rary dethronement  of  reason,  but  in  the  furtherance  of  a 
formed  design  to  gratify  a  feeling  of  revenge  or  to  accom- 
plish some  other  unlawful  purpose.^  The  words  "malice 
aforethought"  are  equivalent  to  "malice  and  premeditation." 
"  Deliberation  "  means  a  "  cool  state  of  blood."  Killing  with 
premeditation,  in  a  cool  state  of  the  blood,  is  murder  in  the 
first  degree.  Wilful  killing,  without  deliberation,  and  without 
malice  aforethought,  constitutes  manslaughter.*  Under  this 
statute  an  instruction  defining  "  premeditation  "  as  "  thought 
of  for  any  length  of  time,  however  short,  is  erroneous  by  the 
omission  of  the  word  '  beforehand.'  "  ^ 

Wliere  the  defendant,  in  malice,  wilfully  struck  and 
wounded  the  deceased  w4th  a  club  or  stick  likely  to  produce 
death,  or  great  bodily  harm,  without  any  specific  intent  to 
kill,  but  with  the  intent  to  inflict  great  bodily  harm  upon  the 
deceased,  and  death  resulted  from  the  wounds  inflicted,  the 
defendant  is  guilty  of  murder  in  the  first  degree.^ 

If,  in  pursuance  to  a  previously  formed  design,  one  pre- 
pares his  weapon,  provokes  another  to  combat,  and  kills  him, 
his  mental  excitement  at  the  time  does  not  necessarily  reduce 
the  crime  to  murder  in  the  second  degree.*^  And  where  the 
immediate  occasion,  on  which  a  homicide  occurred,  Avas  the 
result  of  preconceived  anger  and  malice,  the  killing,  if  done 
in  malice,  though  in  mutual  combat,  was  deliberate  and  pre- 
meditated murder.^  One  who  slioots  at  another  Avith  intent 
to  kill,  but  misses  him  and  kills  a  third  person,  is  guilty  of 

1  State  V.  Hopkirk,  84  Mo.  278  *  State  v.  Curtis,  70  Mo.  594  (1879)  ; 
(1884)  ;   overruling  State  v.  Hopper,     s.c.  10  Cent.  L.  J.  370. 

71  Mo.  25  (1880);  State  v.  Earnest,  5  gtate  r.  Harris,  76  Mo.  361  (1882). 

70  Mo.  520  (1879).  e  State   v.   Nueslein,   25    Mo.    Ill 

2  State  >:  Hill,  69  Mo.  451  (1879)  ;      (1857). 

State  V.  Melton,  8  Mo.  417.  "  State  v.  Dieckman,  11    Mo.  App. 

3  See    State  v.  Sneed,  91   Mo;    552     538  (1883). 

(1887)  ;  s.c.  4  S.  W.  Rep.  411.  »  State  v.  Green,  37  Mo.  466  (1866). 


112  HOMICIDE.  [chap.  V. 

murder  in  the  first  degree. ^  Thus  where  one  hides  behind  a 
hedge,  shoots  at  a  man  driving  with  his  family  in  a  wagon, 
with  intent  to  kill  him,  and  kills  his  child  instead,  he  is 
guilty  of  murder  in  the  first  degree,  under  the  statutes  of 
Missouri.^ 

Where  defendant  wilfully,  premeditately,  and  of  malice 
aforethought  kills  a  child,  or  is  present  aiding  or  abetting 
another  so  to  shoot  and  kill  deceased,  it  is  murder  at  common 
law ;  and  where  it  is  also  committed  by  lying  in  wait,  it  is 
murder  in  the  first  degree.^  The  intentional  killing  of  an 
officer  acting  under  proper  warrant  of  arrest,  is  murder  in 
the  first  degree. 2 

In  Nebraska  the  words  "deliberate  and  premeditated  malice  " 
in  the  statute  ^  mean  that  if  any  person  shall  purposely,  and 
of  deliberate  and  premeditated  malice,  kill  another,  he  shall 
be  deemed  guilty  of  murder  in  the  first  degree.  This  re- 
stricts convictions  to  cases  where  some  degree  of  deliberation 
is  shown  to  have  taken  place  before  the  killing.* 

In  New  Jersey  premeditated  design  to  kill,  no  matter  of 
w^hat  duration,  will  constitute  murder  in  the  first  degree.'^ 

In  New  York,  for  the  existence  of  the  deliberation  required 
to  constitute  the  statutory  crime  of  murder  in  the  first  degree, 
the  time  need  not  be  long,  and  may  be  short.  If  it  furnishes 
room  and  opportunity  for  reflection,  and  the  facts  show  that 
such  reflection  existed,  and  the  mind  was  busy  with  its  design, 
and  made  the  choice  with  full  chance  to  choose  otherwise, 
the  condition  of  the  statute  is  fulfilled.*^ 

Where  one  in  the  heat  of  passion  strikes  another,  and 
supposing  the  blow  to  have  been  fatal,  proceeds  to  conceal 
the  body,  but  the  person  struck  revives  and  is  then  deliber- 
ately strangled  for  the  purpose  of  escape  and  concealment, 
such  facts  show  a  "  deliberate  and  premeditated  design,"  suffi- 
cient to  warrant  a  conviction  of  murder  in  the  first  degree." 

1  State    V.    Payton,    90    Mo.  220     Dutoli.)  4(53  (1857)  ;  affirmed  in  error, 

(188(5)  ;  s.c.  2  S.  \V.  Kc]).  ;«)4.  26  N.  J.  L.  (2  Duteli.)  (iOl. 

'■^  State    V.   McNally,    87    Mo.  044          6  People  v.  Beckvvitli,  103  N.  Y.  .360 

(1885).                           '  (1880)  :  s.c.  8  N.  E.  Hep.  002  ;  3  N.  Y. 

3  Neb.  Gen.  St.  720.  St.  Rep.  759;    People  v.  Majone,  91 

4  Milton  V.  State,  0  Neb.  1.30,  143     N.  Y.  211  (1883). 

(1877),  "  People  c  Deacons,  109  N.  Y.  374 

5  Donnelly  v.  State,  20  N.  J.  L.  (2     (1888) ;  s.c.  16  N.  E.  Kep.  676. 


SEC.  104.]  MURDER.  113 

In  People  v.  Beckwitli,^  which  was  the  trial  of  an  indict- 
ment for  murder,  defendant's  testimony  was  that  he  and 
deceased,  as  the  result  of  a  quarrel  in  defendant's  house, 
became  engaged  in  a  furious  struggle  there,  in  the  course  of 
which  he,  being  jammed  back  against  the  wall  and  choked  by 
the  deceased,  seized  a  knife  from  a  shelf  near  him  and  struck 
deceased  with  it,  weakening  him  so  that  defendant  got  him 
down  and  choked  him  until,  finding,  as  defendant  expressed 
himself,  "  that  he  was  about  past  recall,"  defendant  "  let  him 
go,"  and  "  was  afraid  "  he  "  had  killed  him  "  ;  that  defendant 
then  went  for  and  obtained  liis  axe  with  which  he  struck 
deceased  on  the  head,  killing  him.  It  appeared  that  he  then 
proceeded  to  mutilate  and  destroy  the  body.  The  defend- 
ant's own  testimony,  in  connection  with  the  other  evidence, 
furnished  grounds  for  a  conviction  of  murder  in  the  first 
degree ;  for  while  the  blow  of  the  knife  might  have  been 
given  in  the  heat  of  the  affray  and  without  a  purpose  to  kill, 
the  procuring  the  axe  and  the  subsequent  conduct  showed  a 
design  to  kill,  and  some  degree  of  premeditation  and  delibera- 
tion P- 

One  may  be  convicted  of  murder  in  the  first  degree,  although 
no  motive  for  the  crime  is  disclosed,  nor  any  previous  ill-feel- 
ing shown  to  have  existed,  the  act  having,  apparently,  been 
one  of  deliberate  stabbing  without  provocation.^  On  a  trial 
for  murder  it  appeared  that  the  accused  and  the  deceased 
had  had  no  acquaintance  before  the  occasion  of  the  homicide  ; 
that  their  meeting  was  casual ;  that  the  deceased  made  some 
trifling  remark,  and  the  accused  taking  offence  thereat  stabbed 
him  with  a  knife,  causing  immediate  death.  It  was  held  that 
the  killing,  though  probably  unintentional,  was  "by  an  act 
imminently  dangerous  to  others,  and  evincing  a  depraved 
mind  regardless  of  human  life,"  and  would  have  warranted 
a  verdict  of  murder  in  the  first  degree ;  that  if  not  murder  in 
the  first  degree,  it  must  have  been  manslaughter  in  the  third 
or  fourth  degree,  as  it  did  not  come  within  the  statutory 
definition  of  murder  in  the  second  degree,  the  accused  not 

1  103  N.  Y.  360  (1886)  ;  s.c.  8  N.  E.  360  (1886)  ;  s.c.  8  N.  E.  Rep.  662  ;  3 
Rep.  662  ;  3  N.  Y.  St.  Rep.  759.  N.  Y.  St.  Rep.  759. 

2  People  V.  Beckwith,    103   N.    Y.  -^  People  v.   Cornetti,  92  N.  Y.  85 

(1883). 

8 


114  HOMICIDE.  [chap.  V. 

having  been  engaged  in  the  commission  of  any  other  felony 
at  the  time  of  the  killing.^ 

Under  the  New  York  statute  of  1876,^  making  a  homicide 
by  one  engaged  in  the  commission  of  felony  murder  in  the 
first  degree,  the  fact  that  the  accused  while  committing  a 
burglary  did  not  intend  to  kill  the  mistress  of  the  house, 
whom  he  strangled,  but  only  to  avoid  outcry  and  pursuit,  is 
immaterial.^  In  the  case  of  Ruloff  v.  People,^  one  of  three 
burglars  who  had  entered  a  store  in  the  night  was  seized  by 
two  clerks,  and  in  the  struggle  with  them  Avas  struck  and 
severely  injured.  The  other  two  at  first  fled,  but  upon  his 
cries  for  help,  they  returned  and  shot  and  killed  the  clerk  who 
was  at  the  time  struggling  with  him.  Although  the  deceased 
had  the  captive  burglar  at  an  advantage,  there  was  no  evi- 
dence that  the  latter  was  in  any  danger  of  bodily  harm,  or  that 
the  deceased  was  doing  anything  more  than  was  necessary 
to  defend  himself,  or  possibly  to  detain  the  burglar  in  custody 
and  prevent  his  escape.  The  crime  was  murder  in  the  first 
degree. 

Where  a  person  engaged  in  the  commission  of  the  crime  of 
rape,  by  means  of  any  force  or  violence  employed  by  him  for 
the  purpose  of  accomplishing  his  object,  causes  the  death  of 
the  female,  although  he  did  not  intend  to  kill,  he  is  guilty 
of  murder  in  the  first  degree ;  because  it  is  a  killing  perpe- 
trated by  a  person  engaged  in  the  commission  of  a  felony, 
within  the  meaning  of  the  statute  defining  that  degree  of 
murder. '5 

The  Oregon  statute  defining  murder  as  a  "malicious  killing" 
is  not  necessarily  murder  in  the  first  degree.  It  nuist  also 
be  wilful,  deliberate,  and  premeditated,  or  committed  in  the 
attempt  to  perpetrate  some  one  of  the  felonies  mentioned  in 
the  statute  in  order  to  render  it  murder  in  the  first  degree.*^ 
Where  the  defendant  committed  a  robbery,  and  while  carrying 
off  the  plunder  was  pursued  by  a  constable,  whom  he  shot 


1  People    V.     Skeclian,    40     Barb.  Ruloff's    Case,  11    Abb.    (N.  Y.)    Pr. 
(N.  Y.)  217  (1807).  N.  S.  245  (1H71). 

2  N.  Y.  L.  1870,  c.  ?y-l^.  ^  Buel    v.    People,    78    N.    Y.  492 

3  Cox  r.  People,   P.)  Ilun    (N.  Y.)  (1879). 

430  (1879).  "  State   v.    Garrand,    5    Oreg.    216 

*  45  N.  Y.  21.3  (1871)  ;  s.c.  sub  nom.  (1874). 


MURDER. 


115 


SEC.  104.] 

at,  and  in  so  doing  killed  a  boy  standing  near,  he  was  held 
guilty  of  murder  in  the  first  degree.^ 

In  Pennsylvania  it  is  held  that  in  order  to  constitute  murder 
in  the  lirst  degree  it  is  not  only  necessary  that  the  act  of 
killing  should  be  wilful,  premeditated,  malicious,  legally 
unjustifiable,  and  inexcusable,  but  the  act  of  violence  must 
be  specifically  directed  against  life.^  If,  at  the  time  defend- 
ant cUd  the  act,  he  thought  of  his  purpose  to  kill  the  deceased, 
and  had  time  to  think  that  he  would  execute  it,  and  formed 
fully  in  his  mind  the  conscious  design  of  killing,  and  had 
time  to  think  of  the  weapon  that  he  had  prepared,  and  that 
lie  would  use  it,  and  accordingly  did  so  use  it,  it  Avould  be 
murder  in  the  fkst  degree.^ 


1  State  V.  Brown,  7  Oreg.  186 
(1879). 

■■^  Commonwealth  v.  Williams,  2 
Aslim.  (Pa.)  (59  (1839);  Common- 
wealth V.  Murray,  2  Ashm.  (I'a.)  41 
(1834). 

In  an  early  case  it  is  said  that 
although  murder  in  the  first  degree 
under  the  statute  of  Pennsylvania  is 
confined  to  the  wilful,  deliberate,  and 
premeditated  killing  of  another,  the 
intention  — to  be  collected  from  words 
and  actions  —  remains  as  much  as 
ever  the  true  criterion  of  crime.  Res- 
publica  V.  Mulatto  Bob,  4  U.  S.  (4 
Dull.)  145  (1795)  ;  bk.  1  L.  ed.  770. 

3  Commonwealth  v.  Drum,  58  Pa. 
St.  9  (18G8). 

Where  G.,  after  a  business  alterca- 
tion with  M.,  started  up  the  road  from 
M.'s  house  towards  home,  M.  seized 
a  poker  and  called  out  to  G.  that  if  he 
would  come  back,he(G.)  should  never 
go  away  alive.  G.  replied,  "  I  will 
come  back,  God  damn  your  wicked 
heart,"  and  levelled  a  gun  at  M.,  who 
said,  "  Shoot,  if  you  want  to."  G.  dis- 
charged the  gun  and  shot  M.  It  was 
held  that  here  were  the  ingredients  of 
murder  in  the  first  degree,  the  intent 
being,  within  the  Pennsylvania  statute 
in  that  regard,  a  fully  formed  purpose 
to  kill,  with  so  much  time  for  deliber- 
ation and  premeditation  as  to  convince 
the  jury  that  this  purpose  is  not  the 
immediate  result  of  rashness  and  im- 


petuous temper.     Green  v.  Common- 
wealth, 83  Pa.  St.  75  (1876). 

In  Nevling  v.  Commonwealth,  98 
Pa.  St.  323  (1881),  A  and  B  having  a 
street  fight,  in  which  A  was  knocked 
down  and  beaten,  and  the  parties 
having,  at  A's  suggestion,  shaken 
hands,  A  went  off,  but  made  threats 
during  the  evening  to  different  per- 
sons that  he  would  shoot  B  the  next 
day.  A  was  then  very  drunk,  and, 
after  drinking  further,  he  took  a  pint 
bottle  of  whiskey  home  with  him,  and 
went  to  bed  without  taking  any  supper 
but  a  cup  of  coffee.  The  next  morn- 
ing lie  ate  no  breakfast,  but  drank  a 
pint  of  whiskey,  and  a  half-pint  of  al- 
cohol ni  which  was  dissolved  about 
an  ounce  of  gum  camphor.  Then  he 
started  for  town  with  his  gun  in  his 
hand,  stating  to  a  person  whom  he 
saw  on  the  way  that  he  had  a  load  in 
it  to  shoot  the  man  who  hit  him  the 
night  before.  On  arriving  at  town  he 
drank  more  whiskey,  and  finally  met 
B  on  the  street,  walking  along  and 
perfectly  sober.  B  passed  him  with- 
out speaking,  but  A,  after  going  a  few 
steps,  stopped,  turned  around,  shot  B 
in  the  back  and  fatally  wounded  him. 
On  being  arrested,  A  said  he  knew 
what  he  had  done,  and  expected  to  be 
hung  for  it.  The  court  held  that  a 
conviction  of  murder  in  the  first  de- 
gree was  proper. 


116  HOMICIDE.  [chap.  V. 

To  constitute  murder  in  the  first  degree,  without  the 
specific  intent  to  take  the  life,  a  killing  must  be  clearly 
shown  by  the  prosecution  to  have  occurred  in  the  perform- 
ance of  such  acts  as  establish  clearly  an  attempt  to  perpetrate 
arson,  rape,  robbery,  or  burglary.^  But  to  constitute  mur- 
der in  the  first  degree,  where  the  killing  happened  in  attempt 
to  perpetrate  a  rape,  the  attempt  must  be  actual,  not  con- 
structive.^ 

In  Tennessee,  to  constitute  murder  in  the  first  degree  under 
a  statute,^  which  declares  that  "all  murder  which  shall 
be  perpetrated  by  means  of  poison,  lying  in  wait,  or  any 
other  kind  of  wilful,  deliberate,  malicious,  and  premeditated 
killing,  or  which  shall  be  committed  in  the  perpetration  of, 
or  attempt  to  perpetrate,  rape,  arson,  burglary,  or  larceny, 
shall  be  deemed  murder  in  the  first  degree."  There  must 
exist  in  the  mind  of  the  person  who  slays  another  a  specific 
intention  to  take  the  life  of  the  person  slain,  and  that  if  he, 
with  premeditated  intention  to  slay  one  person,  against  his 
intention  slay  another,  it  will  not  be  murder  in  the  first 
degree.^  The  killing  must  be  done  premeditately.  It  is  not 
suflicient  that  it  was  malicious  and  wilful  in  the  common- 
law  sense.^  Tliere  must  be  a  design  formed  to  kill  wilfully, 
that  is,  of  purpose,  with  the  intent  that  the  act  by  which 
the  life  of  a  party  is  taken  should  have  that  effect ;  deliber- 
ately, tliat  is,  with  cool  purpose  ;  maliciously,  that  is,  with 
malice  aforethought ;  and  with  premeditation,  that  is,  the 
design  must  be  formed  before  the  act  by  which  the  death  is 
produced  is  performed.^  The  characteristic  ingredient  in  the 
offence  of  murder  of  the  first  degree  is  the  existence  of  a 
specific  intention  to  take  life  ;  and  if  that  intention  be  delib- 
erately and  coolly  formed  and  acted  upon,  and  death  ensue, 
the  intervention  of  provocation  between  the  formation  of  tlie 
puri)ose  to  take  life  and  the  slaying  will  not  reduce  the 
offence  to  manslaughter.^ 

1  Kelly  ;-.  CommonwcaUli,  1  Grant.  ^  Anthony  v.  State,  1  Moigs  (Tonn.) 
Cas.  (Pa.)  484  (1858).                                  205  (1838);  Dale  r.  State,'  10  Yerg. 

2  Tenn.  St.  1829,  c.  2'.],  §  3.  (Tenn.)  551  (18o7). 

•■' Bratton     v.    State,     10     IIiini])]i.  '' Clark  r.  State,  8  Humph.  (Tenn.) 

(Tenn.)  103  (1849).  071  (1848). 

*  Mitoliell  i'.  State,  5  Yerfr.  (Tenn.)  A  eaught   P  carrying  away  prop- 

340  (1833);  s.c.  8  Yerg.  (Tenn.)  514.  erty  which  he  had  stolen  from  A.     In 


SEC.  104.]  MUEDER.  117 

If  a  blow  be  struck  by  a  party  lying  in  wait,  with  a  deadly 
weapon,  without  provocation,  it  is  murder  in  the  first  degree  ; 
the  lying  in  wait  is  evidence  of  malice  and  premeditation,  and 
all  evidence  as  to  the  extent  of  the  injury  which  assailant 
intended  to  inflict  on  the  deceased  is  irrelevant.^ 

Under  the  Texas  code,  the  express  malice,  which  is  the  dis- 
tinctive ingredient  of  murder  in  the  first  degree,  must  be 
directed  towards  the  particular,  individual  killed.  If  another 
than  one  against  whom  the  express  malice  is  conceived  and 
entertained  be  the  victim,  the  homicide  becomes  murder 
in  the  second  degree.^  Evidence  of  brutal  and  cruel  treat- 
ment towards  the  deceased  prior  to  the  homicide,  will  not 
suffice  to  establish  such  malice  as  will  sustain  a  conviction 
for  murder  in  the  first  degree.^  Ljdng  in  wait  is  evidence 
of  express  malice  sufficient  to  sustain  a  conviction  for  murder 
in  the  first  degree  where  there  are  attendant  circumstances 
which  bear  out  the  presumed  malice.*  Killing  by  adminis- 
tering poison  with  a  design  to  take  life  is  murder  in  the  first 
degree.^  A  homicide  committed  in  the  perpetration  of  rob- 
bery is  per  se  murder  in  the  first  degree.^     And  a  homicide 

catching  him  he  shot  hitn  in  the  leg  (1875),  two   men,   utter  strangers   to 

and  then  took   him  into  a  drug-store  each  otlier,  on  their  first  meeting  en- 

and  sent  for  the  police.     Before  the  gaged  in  a  rencounter,  in  which  one 

police  came  B  tried  to  escape,  and  A  was  killed.     The  difficulty  began  by 

tried  to  prevent  it.     A  had  a  pistol  in  an  effort  on  the  part  of  deceased  to 

liis    hand    all    the    while,  and    in    the  stop  the  way  of   the  survivor  as   he 

struggle  B  grasped  it,  and  failing  to  was  passing,  followed  by  the  drawing 

possess    himself   of   it  drew   his  own  of  a  pistol  by  deceased,  over  which  a 

pistol  and  killed  A.     The  court  held  struggle  occurred    for  its    possession, 

that   A   was   justified   in   making  the  During    the    struggle    the   pistol  was 

arrest,  as  well  as  in  trj-ing  to  prevent  fired  and  deceased  fell,  whereupon  the 

B's  escape,  and  that  B  was  properly  survivor,  after  stepping  froni  the  body 

convicted  of  murder  m  tire  first  de-  four  or  five  steps,  instantly  returned 

gree.    Wilson  v.  State,  11  Lea  (Tenn.)  and  fired  off  the  pistol  at  the  head  of 

310  (1883).  his  late  adversary,  inflicting  a  mortal 

1  Riley  v.  State,  9  Humph.  (Tenn.)  wound.  Not  more  than  twenty  sec- 
646  (1849).  onds  elapsed  from  the  first  meeting  to 

2  Miisick  V.  State,  21  Tex.  App.  the  consummation  of  the  homicide, 
69  (1887).  It  was    held    that    the  circumstances 

"  Slielton    V.    State,   .34    Tex.    602  attending  the  homicide  did  not  afford 

(1871).  evidence  of  that  express  malice  neces- 

*  Johnson    r.    State,    30   Tex.    748  sary  to  constitute  murder  of  the  first 

(1868).     Compare   Osborne    v.   State,  degree. 

23  Tex.  App.  431  (1887)  ;  s.c.  5  S.  W.  &  Tooney  v.  State,  5  Tex.  App.  103 

Rep.  251.  (1879). 

In  Burham  v.  State,  43  Tex.  322  «  Giles  v.  State,  25  Tex.  App.  281 


118 


HOMICIDE. 


[chap.  V. 


committed  in  the  perpetration  of  arson,  rape,  or  burglary, 
under  the  penal  code  of  Texas,  is  murder  in  the  first  degree  ; 
the  malice  in  such  cases  being  evidenced  by  the  act  of  kill- 
ing for  such  purposes.! 

In  West  Virginia  one  who,  while  sober,  deliberately  resolves 
to  kill  another,  and  makes  himself  drunk  for  that  purpose, 
and  while  temporarily  insane,  and  unconscious  of  what  he  is 
doing,  because  of  such  drunkenness,  kills  the  person,  is 
guilty  of  murder  in  the  first  degree.^ 

Sec.  105.  Same  —  Second  degree.  —  As  a  general  rule, 
all  homicides  committed  with  malice  aforethought  which  lack 
premeditation  and  deliberation,  and  which  are  not  committed 
by  poison  or  lying  in  wait,  or  in  the  perpetration,  or  at- 
tempt to  perpetrate  rape,  arson,  burglary,  or  robbery,  is  mur- 
der in  the  second  degree  under  the  statute  of  the  various 
states.^     This  includes  all  cases  of  common-law  murder  where 


(1887)  ;  s.c.  4  S.  W.  Rep.  88(5 ;  Gon- 
zales V.  State,  19  Tex.  App.  394  (1886)  ; 
Stanley  v.  State,  14  Tex.  App.  315 
(1884)  ;  Duran  v.  State,  14  Tex.  App. 
195  (1884)  ;  Pharr  v.  State,  7  Tex. 
App.  472  (1880)  ;  Singleton  v.  State, 
1  Tex.  App.  501  (1877). 

1  Singleton  v.  State,  1  Tex.  App. 
501  (1877). 

•  State  V.  Robinson,  20  W.  Va.  713 
(1882)  ;  s.c.  43  Am.  Rep.  709. 

3  See  Fields  v.  State,  52  Ala.  348 
(1875)  ;  Duncan  v.  State,  49  Ark.  543 
(1887)  ;  s.c.  6  S.  W.  Rep.  164 ;  Green  v. 
State,  45  Ark.  281  (1885) ;  Harris  v. 
State,  36  Ark.  127  (1880);  People 
V.  Grigsby,  62  Cal.  482  (1880)  ;  Peo- 
ple V.  Doyell,  48  Cal.  85  (1874)  ;  State 
V.  Johnson,  41  Conn.  584  (1874)  ;  s.c. 
Lawson's  Insan.  609 ;  State  v.  O'Neil, 
1  Houst.  Cr.  Cas.  (Del.)  468  (1875)  ; 
State  V.  Boice,  1  Houst.  Cr.  Cas.  (Del.) 
355  (1871);  State  v.  Till,  1  Houst. 
Cr.  Cas.  (Del.)  233  (1867)  ;  State  v. 
Hamilton,  1  Houst.  Cr.  Cas.  (Del.) 
101  (1860);  Boi/le  v.  State,  105  Ind. 
469  (1885);  s.c.  55  Am.  Rep.  218; 
7  Cr.  L.  Mag.  655  ;  5  N.  E.  Rep.  203  ; 
Brooks  V.  State,  90  Ind.  428  (1883)  ; 
Miller  v.  State,  74  Ind.  1  (1881)  ; 
Fahnestock    v.    State,    23    Ind.    231 


(1864)  ;  State  v.  Marsh,  70  Iowa,  759 
(1886)  ;  s.c.  30  N.  W.  Rep.  389;  State 
V.  Leeper,  70  Iowa,  748  (1886)  ;  s.c. 
30  N.  W.  Rep.  501 ;  State  v.  Town- 
send,  66  Iowa,  741  (1885)  ;  s.c.  7  Cr. 
L.  Mag.  65;  s.c.  24  N.  W.  Rep.  535; 
State  V.  Spangler,  40  Iowa,  365(1875)  ; 
State  V.  Morphy,  33  Iowa,  270  (1871)  ; 
State  V.  O'Hara,  92  Mo.  59  (1887)  ; 
s.c.  4  S.  W.  Rep.  422;  State  v.  Kotov- 
sky,  74  Mo.  247  (1881)  ;  State  v. 
Lewis,  74  Mo.  222  (1881);  s.c.  3  Cr. 
L.  Mag.  78;  State  v.  Ellis,  74  Mo. 
207'(1881)  ;  State  r.  Erb,  74  Mo.  li5U 
(1881);  s.c. Lawson's  Insan. 10;  Staler. 
Robinson,  73  Mo.  306  (1880)  ;  State 
V.  Stocckli,  71  Mo.  559  (1880);  State 
r.  Cooper,  71  Mo.  436  (1880)  ;  State  v. 
Curtis,  70  Mo.  594  (1879);  State  v. 
Hill,  69  Mo.  451  (1879)  ;  State  v. 
Wieners,  66  Mo.  13  (1877)  ;  State  v. 
Lewis,  14  Mo.  App.  191  (1885)  ;  Bo- 
hanan  v.  State,  15  Neb.  209  (1883)  ; 
s.c.  6  Cr.  L.  Mag.  841 ;  18  N.  W.  Rep. 
129;  Daly  r-.  People,  32  Hun  (N.  Y.) 
182  (1884)  ;  McCue  v.  Commonwealth, 
78  Pa.  St.  185  (1885)  ;  Common- 
wealth V.  Drum,  58  Pa.  St.  9  (1868)  ; 
Kelly  r.  Commonwealth,  1  Grant  Cas. 
(Pa.)  484  (1858)  ;  Petty  v.  State,  6 
Baxt.  (Teun.)   010   (1872);    Gray   v. 


SEC.  105.] 


MURDER. 


119 


the  intention  is  not  to  take  the  life,  but  only  to  do  great 
bodily  harm,  or  to  commit  other  injuries ;  ^  and  all  other 
common-law  murder,  unless  tlie  statute  expressly  prescribes 
that  homicide  committed  under  certain  circumstances  shall 
be  of  a  lesser  degree. 

In  murder  in  the  second  degree  there  may  be  a  former 
design  and  purpose  to  kill ;  but  it  is  followed  immediately 
by  the  act,  and  is  not  premeditated,  the  time  and  circum- 
stance being  such  as  not  to  allow  deliberate  thought.  Thus, 
where  a  person  forms  a  design  in  the  midst  of  a  conflict  to 
kill  his  opponent,  and  immediately  executes  such  design,  the 
killing  is  not  premeditated,  and  is,  therefore,  no  higher  of- 
fence than  murder  in  the  second  degree.^  No  rule  can,  how- 
ever, be  laid  down  for  universal  application  as  to  elements 
or  essentials  of  murder  in  the  second  degree ;  but,  as  in  the 
first  degree,  courts  must  be  largely  guided  by  the  statutory 
provisions  in  their  jurisdictions,  and  their  own  adjudications 
as  applied  to  the  peculiar  circumstances  of  each  separate 
case."^ 


State,  4  Baxt.  (Tenn.)  332  (1874)  ; 
Witt  V.  State,  6  Coldw.  (Tenn.)  5 
(1868)  ;  Fitzgerald  v.  State,  15  Lea 
(Tenn.)  99  (188-5)  ;  Hull  v.  State,  6 
Lea  (Tenn.)  249  (1880) ;  AUsup  v. 
State,  5  Lea  (Tenn.)  362  (1880)  ; 
McQueen  v.  State,  1  Lea  (Tenn.)  285 
(1878) ;  Anthony  v.  State.  1  Meigs 
(Tenn.)  265  (1838)  ;  Coldwell  v. 
State,  41  Tex.  87  (1874)  ;  Scott  v. 
State,  23  Tex.  App.  452  (1887)  ;  s.c. 

5  S.  W.  Rep.  189 ;  Van  v.  State,  21 
Tex.  App.  676  (1887)  ;  Hart  v.  State, 
21  Tex.  App.  163  (1887)  ;  Musick  v. 
State,  21  Tex.  App.  69  (1887)  ;  Lucas 
V.  State,  19  Tex.  App.  79  (1886) ; 
Alexander  v.  State,  17  Tex.  App.  614 
(1885)  ;  Cunningham  v.  State,  17  Tex. 
App.  89  (1885);  Aikin  v.  State,  10 
Tex.  App.  610  (1881)  ;  Hoss  v.  State, 
10  Tex.  App.  455  (1881)  ;  s.c.  38  Am. 
Rep.  643;  Hubby  y.  St^te,  8  Tex.  App. 
597  (1880)  ;  Douglass  v.  State,  8  Tex. 
App.  520  (1880)  ;  Harris  v.  State,  8 
Tex.  App.  90  (1880)  ;  Evans  v.  State, 

6  Tex.  App.  513  (1879)  ;  Wilson  r. 
State,  6  Tex.  App.  427  (1879)  ;  Hogan 
V.  State,  36  Wis.  226  (1874). 


1  Washington  v.  State,  53  Ala.  29 
(1875)  ;  Harris  v.  State,  36  Ark.  127 
(1880)  ;  State  v.  Rhodes,  1  Houst. 
Cr.  Cas.  (Del.)  476  (1877)  ;  State  v. 
Boice,  1  Houst.  Cr.  Cas.  (Del.)  355 
(1871)  ;  State  v.  Till,  1  Houst.  Cr. 
Cas.  (  Del.)  233  (1867) ;  State  v. 
Green,  1  Houst.  Cr.  Chs.  (Del.)  217 
(1866);  State  v.  Gardner,  1  Houst. 
Cr.  Cas.  (Del.)  146  (1804);  State  v. 
Hamilton,  1  Houst.  Cr.  Cas.  (I^el.) 
101  (1860)  ;  State  v.  Jones,  1  Houst. 
Cr.  Cas.  (Del.)  21  (1857)  ;  State  v. 
Decklotts,  19  Iowa,  447  (1865)  ;  State 
r.  Erb,  74  Mo.  199  (1881);  s.c. 
Lawson's  Insan.  10  ;  State  v.  Robin- 
son, 73  Mo.  306  (1880)  ;  State  v. 
Hill,  69  Mo.  451  (1879) ;  AUsup  v. 
State,  5  Lea  (Tenn.)  362  (1880)  ; 
Caldwell  v.  State,  41  Tex.  86  (1874)  ; 
Hill  V.  State,  11  Tex.  App.  456  (1882)  ; 
Whiteford  v.  Commonwealth,  6  Rand. 
(Va.)  721  (1828). 

2  Fahnestock  v.  State,  23  Ind.  231 
(1864). 

3  See  Fields  v.  State,  52  Ala.  348 
(1875)  ;  People  v.  Doyell,  48  Cal.  85 
(1874) ;  State  v.  O'Niel,  1  Houst.  Cr. 


120  HOMICIDE.  [chap.  V. 

Sec.  106.  Same  —  Illustrations.  —  In  Arkansas,  where  two 
men  fought,  and  one  said  to  the  other,  '■'  Go  away,"  and  started 
off,  the  other  followed,  and  struck  and  killed  him  with  a  stout 
stick,  a  verdict  of  murder  in  the  second  degree  was  held  to 
have  been  properly  rendered.^  In  Duncan  v.  State  ^  the  testi- 
mony was  to  the  effect  that  the  accused  and  the  deceased,  who 
was  his  farm-hand,  had  some  word^,  the  deceased  being  in  the 
inclosure  where  he  lived,  and  the  accused  on  the  other  side 
of  the  fence,  in  the  road.  The  deceased  was  given  his  dis- 
charge, when  he  began  cursing  the  accused,  and  drew  a  pocket- 
knife  and  advanced  toward  him.  As  he  mounted  the  fence, 
he  threatened  to  ''  cut  the  heart  out "  of  the  accused,  and 
dared  liim  to  shoot.  The  accused,  who  was  carrying  a  double- 
barrelled  shot-gun  on  his  shoulder,  retired  about  twelve  feet, 
and  warned  the  deceased  not  to  come  over  the  fence.  The 
deceased  jumped  down,  and  was  within  ten  feet  of  the  accused, 
when  the  latter  brought  the  gun  from  his  shoulder,  with  the 
breach  to  his  hip,  and  fired,  the  load  passing  into  the  breast 
of  the  deceased  and  ranging  upwards.  The  accused,  at  the 
time,  was  quite  feeble  from  sickness ;  but  his  son,  who  was 
near  him,  w^as  an  able-bodied  man.  The  court  held  this  evi- 
dence sufficient  to  support  a  verdict  of  murder  in  the  second 
degree.'^  In  Harris  v.  State,^  where  N.,  a  colored  man,  went 
to  the  door  of  a  room  of  C,  a  Chinaman  (who  lived  on  the 
same  plantation  with  him),  and  after  asking  C,  "  Ain't  you 
up  yet  ?  "  went  into  the  room  with  a  pistol  in  his  hand,  and 

Ca%.     (Del.)    4G8     (1875)  ;    State    v.  State    v.   Lewis,   14    Mo.    App.    191 

Boice,   1   Houst.  Cr.  Cas.    (Del.)   -355  (1885)  ;  Gray  i-.  State,  4  Baxt.  (Tenn.) 

(1871)  ;  State  v.  Leeper,  70  Iowa,  748  ,332    (1874)  ;    Caldwell    i-.    State,    41 

(1886)  ;  s.c.  30  N.  W.  Rep.  501  ;  State  Tex.  87  (1874)  ;  Van  v.  State,  21  Tex. 

V.  Townsen(l,G(i  Iowa,  741  (1885);  s.c.  App.  67G    (1887);    Hart  v.  State,  21 

7  Cr.  L.  Mag.  05 ;  24  N.  W.  Rep.  535 ;  Tex.    App.    163    (1887);    Musick    v. 

State  v.  Morphy,  33  Iowa,  270  (1871)  ;  State,  21  Tex.  App.  69  (1887)  ;  Aiken 

State  v.  O'llata,   92   Mo.  59    (1887);  ;•.  State,  10  Tex.  App.    610    (1881); 

s.c.    4    S.    W.     Rep.     422 ;    State    r.  Boss    v.     Staff,    10    Tex.    App.    455 

Kotovsky,  74  Mo.  247    (1881);    State  (1881);  s.c.  38  Am.  Rep.  643  :  Hubby 

r.  Ellis,  74  Mo.  207    (1881);  State  v.  r.  State,8Tex.  App.  597  (1880);  Doug- 

Lewis,  74  Mo.  222   (1881)  ;  s.c.  3  Cr.  lass  v.  State,  8  Tex.  App.  520  (1880); 

L.    Mag.   78;    State    v.   Erb,    74    Mo.  Hogan  ;•.  State,  .36  Wis.  226  (1874). 
199     (1881);     s.c.    Law.    Insan.     10;  i  Green  i-.  State.  45  Ark.  281  (1885). 

State  r.  Robinson,  73  Mo.  30()  (1880)  ;  2  49  Ark.  543  (1887). 

Stater.  Cooper.   71   Mo.  4.36   fl880)  ;  s  n,inean    v.    State,    49    Ark.    543 

State  V.  Edwanls.  70  Mo.  480  (1879);  (1887);   s.c.  6  S.  W.  Rep.  164. 
State  c.  Curtis,  70  Mo.  594  (1879)  ;  *  36  Ark.  127  (1880). 


SEC.  106.]  MURDER.  121 

said  to  C,  "Get  up,  by  God."  To  this  C.  replied,  "Go  away; 
don't  bother  iue.  I  no  work  to-day,  it  Sunday."  N.  said, 
"You  don't  mean  to  tell  me  to  go  away ?"  and  thereupon 
jerked  C.  out  of  the  bed.  C.  fell  on  his  feet,  and  picking  up 
a  large  pole  which  was  lying  near  the  door,  struck  N.  with  it, 
the  latter  retreating  from  the  blows  into  the  yard  and  out  at 
the  gate,  repeatedly  warning  C.  to  go  away,  and  telling  him 
that  he  didn't  want  to  hurt  him.  After  getting  out  through 
the  gate  N.  fired  at  C.  and  killed  him,  the  witness  leaving  it 
in  doubt  whether  C.  was  near  enough  to  him  to  hit  him  or 
not.  Tliese  facts  were  held  only  suflicient  to  warrant  a  con- 
viction for  murder  in  the  second  degree. 

In  California,  under  the  division  of  murder  into  degrees, 
prescribed  by  the  statute,  a  homicide  which  is  unlawful, 
and  accompanied  Avith  malice,  but  not  deliberate  and  pre- 
meditated, is  murder  in  the  second  degree.^ 

In  Delaware,  where  one  who,  while  attempting  to  rob 
another,  killed  him,  but  Avithout  having  had  any  intent  to 
deprive  him  of  his  life,  was  held  guilty  of  murder  in  the 
second  degree.^  It  is  thought  that  if  a  police  officer  fires 
a  pistol  at  a  pei-son  who  is  attempting  to  escape  arrest  for  a 
misdemeanor,  the  officer  having  a  warrant  for  his  arrest  at 
the  time  in  his  possession,  and  fatally  wounds  a  third  party, 
he  is  guilty  of  murder  in  the  second  degree.^  In  State  v. 
Hamilton,^  where  the  principal  evidence  in  a  murder  trial 
showed  that  while  the  defendant  and  the  only  witness  of  the 
occurrence  were  drinking  in  one  room,  the  defendant,  after 
striking  his  Avife  and  sending  her  into  the  next  room,  passed 
into  the  latter  room  at  several  different  times,  and  struck  his 
wife  on  the  head  with  his  clenched  fist,  and  she  died  seveial 
days  after,  the  jury  were  properly  instructed  to  convict  of 
murder  in  the  second  degree,  if  they  found  that  she  died  from 
the  repeated  blows.  In  State  v.  TilH  A  gave  B  some  money 
to  buy  tobacco  for  him :  B  spent  the  money  for  himself,  and, 


1  People    V.    Doyell,    48    Cal.    85  *  1     Houst.    Cr.    Cas.    (Del.)     101 
(1874).  (1860). 

2  State  V.  Boiee,  1  Houst.  Cr.  Cas.  *  1    Houst.   Cr.    Cas.    (Del.)    233 
(Del.)  355  (1871).  (1867). 

3  State  V.  D'Xiel,  1  Houst.  Cr.  Cas. 
(Del.)  468  (1875). 


122  HOMICIDE.  [chap.  V. 

on  his  return,  was  struck  by  A  with  his  fists  and  kicked.  B 
went  into  the  house  in  a  rage,  got  a  gun,  and  approached  A 
with  it  cocked.  A  advanced  upon  him  with  a  large  hoe  raised 
in  his  hands,  when  he  was  shot  fatally  by  B.  B  was  held  to 
be  guilty  of  murder  in  the  second  degree,  if  there  had  been 
time  for  his  blood  to  cool  after  he  was  struck  by  A ;  other- 
wise, of  manslaughter. 

In  Iowa,  one  who,  without  any  necessity,  either  real  or 
apparent,  kills  another,  is  guilty  of  murder  in  the  second 
degree,  under  the  statute,  although  he  entered  the  combat 
without  any  intent  to  kill.  Especially  is  this  true  if  the 
slayer  takes  an  undue  advantage  or  uses  a  deadly  weapon  ;  ^ 
for  when  one  assaults  another  with  a  deadly  weapon,  likely 
to  produce  death,  the  law  presumes  malice,  in  the  absence  of 
proof,  either  direct  or  by  circumstances,  to  the  contrary.^  In 
State  V.  Leeper^  the  defendant  was  convicted  of  murder  in 
the  second  degree  by  causing  miscarriage  of  a  pregnant 
woman,  upon  evidence  showing  that  the  woman  had  lived  in 
his  house  since  she  was  twelve  years  old ;  that  improper  inti- 
macy existed  between  them ;  that  he  was  a  physician  and 
treated  and  was  constantly  with  her  during  her  sickness,  and 
that  after  he  had  told  her  she  could  not  recover,  she  stated  in 
his  presence,  but  in  the  Swedish  language,  which  he  did  not 
understand,  tliat  her  sickness  and  approaching  death  were  the 
result  6f  a  miscarriage  caused  by  defendant,  who  had  used 
instruments  to  produce  it.  The  court  held  on  appeal  that, 
in  the  absence  of  a  single  fact  tending  to  show  that  the  mis- 
carriage was  necessary  to  save  the  woman's  life,  the  convic- 
tion would  be  sustained. 

In  Missouri,  to  constitute  murder  in  the  second  degree, 
there  must  have  been  premeditation,  not  necessarily  of  the 
killing,  but  of  the  act  causing  it.*  It  is  said  in  the  case  of 
State  V.  Ollara,'^  that  those  cases  of  murder  at  common  law 
in  which  there  was  no  specific  intent  to  kill,  but  in  which  the 

1  State  V.  Morphy,  33  Iowa,  270  *  ptatc  !'.  Lewis,  74  Mo.  222  (1881)  ; 
(1871).  s.c.  3  Cr.  L.  Mag.  78;   State  v.  Erb, 

2  State  V.  Townsend,  GO  Iowa,  741  74  Mo.  199  (1881)  ;  s.c.  Law.  Insan. 
(1885);   s.c.   7    Cr.   L.    Mag.   05;   24  10. 

N.  W.  Rep.  535.  ^  92  Mo.  59    (1887)  ;  s.c.  4  S.  W. 

8  70  Iowa,  748  (1880)  ;  s.c.  30  N.W.     Rep.  422. 
Rep.  501. 


SEC.  106.]  MURDER.  123 

law  jiresumes  the  intent  to  kill,  which  are  not  declared  man- 
slaughter, or  specifically  made  murder  in  the  first  degree  by 
statute,  are  cases  of  murder  in  the  second  degree  ;  and  where 
there  is  evidence  in  the  case  tending  to  show  that  the  killing 
was  with  malice  aforethought,  but  without  deliberation,  an 
instruction  for  murder  in  the  second  degree  should  be  given. 

If  a  homicide  be  committed  wilfull3%  and  without  justifica- 
tion, but  not  deliberately  or  premeditately,  it  is  not  nuirder 
in  the  second  degree.^  Thus  where  one  purposely  fires  into 
a  crowd  without  intending  to  kill  any  particular  person,  does 
kill  some  one,  the  law  presumes  the  killing  to  have  been 
intentional,  and  that  the  crime  was  murder  in  the  second 
degree.^ 

Killing  a  person  in  the  heat  of  passion  reduces  the  homi- 
cide to  murder  in  the  second  degree.  The  passion  referred  to 
in  the  phrase  "■  heat  of  passion  "  is  not  linuted  to  that  heated 
state  which  is  produced  by  some  legal  provocation.^  But  a 
trivial  provocation  will  not  sufiice  ;  thus  the  rejection  of  a 
suitor  by  a  young  woman  is  not  a  just  cause  for  such  a  heat 
of  jjassion  as  will  reduce  homicide  to  murder  in  the  second 
degree.*  What  will  be  deemed  a  just  cause  of  provocation, 
and  reduce  a  homicide  to  murder  in  the  second  degree,  is  a 
question  for  the  court ;  and  whether  the  state  of  mind  neces- 
sary was  in  fact  produced  by  such  provocation  is  a  question 
for  the  jury.^  The  state  of  mind  produced  by  lawful  provo- 
cation arising  from  a  blow,  which  reduces  the  killing  to  man- 
slaughter, when  it  arises  from  degrading  words,  reduces  the 
homicide  to  murder  in  the  second  degree.^  But  provocation 
by  words  which  will  reduce  the  homicide  from  murder  in  the 
first  degree  to  murder  in  the  second,  must  come  from  the 
victim  of  the  homicide  ;  rough  language  by  bystanders  is  not 
sufficient.' 

In  Tennessee,  to  constitute  murder  in  the  second  degree,  the 
proof  must  show  that  the  killing  was  unlawful  and  malicious, 

1  Stater. Cooper,  71  Mo. 436  (1880).  5  gtate  v.  Ellis,  74  Mo.  207  (1881). 

-  State    V.    Edwards,    70    Mo.   480  6  state    v.   Kotovsky,  74  Mo.    247 

(1879).  (1881);   State   v.   Ellis,   74   Mo.   207 

3  State  I'.  Lewis,  74  Mo.  222  (1881)  ;  (1881). 

s.c.  .3  Cr.  L.  Mag.  78.  "  State  v.  Lewis,  14  Mo.  App.  191 

^  State   V.  Kotovskv,   74   Mo.   247  (1885). 
(1881). 


124  HOMICIDE.  [chap.  V. 

although  without  the  cool,  deliberate  purpose  requisite  to 
constitute  murder  in  the  first  degree.^ 

In  Texas,  when  the  fact  of  unlawful  killing  is  proved,  and 
no  evidence  tends  to  show  express  malice  on  the  one  hand, 
or  ail}'  justification,  excuse,  or  any  mitigation  on  the  other, 
the  law  implies  malice,  and  the  offience  is  murder  in  the  sec- 
ond degree.^  Thus  if  it  appears  that  the  express  malice  of 
defendant  was  not  directed  toward  the  person  killed  by 
shooting  him  instead  of  another,  the  crime  is  murder  in  the 
second,  not  in  the  first  degree.'^  And  any  rash  and  inconsid- 
erate killing  from  any  sudden  impulse,  without  any  sedate 
and  deliberate  mind,  is  upon  implied  malice,  and  is  murder 
in  the  second  degree.*  Thus  one  who  fires  a  pistol  into  the 
window  of  a  car  in  which  he  knows  there  are  some  passen- 
gers, is  properly  convicted  of  murder  in  the  second  degree.^ 
And  when  an  officer,  whose  life  is  not  endangered  nor  per- 
son threatened,  kills  a  prisoner  while  attempting  to  escape, 
not  from  malice,  but  from  a  desire  to  prevent  his  escape,  the 
offence  is  murder  in  the  second  degree.'' 

In  the  case  of  Ross  v.  State  *"  A  and  B,  brothers,  were 
convicted  of  murder  in  the  second  degree.  It  appeared  that 
they  were  strangers  in  tlie  town,  and  that  A  had  with  him  a 
gun,  which  deceased,  the  marshal  of  the  town,  ordered  him 
to  deliver  up,  and  before  A  had  an  opportunity  to  comply 
or  refuse  the  marshal  drew  and  fired  a  pistol,  whereupon  B 
drew  and  fired  his  j^istol,  killing  the  marshal.  There  was 
no  evidence  tending  to  show  that  either  A  or  B  was  acting 
in  a  disorderly  manner.  The  appellate  court  lield  tlie  verdict 
was  unsupported  by  the  evidence. 

In  Wisconsin,  where  the  homicide  and  its  circumstances  are 
fully  proved,  evidence  of  good  character  can  only  go  to  the 
intent  of  the  accused.     The  quality  of  the  act  as  "  imminently 


1  Gray  v.   State,  4    Baxt.    (Tenn.)  *  Van  v.  State,  21  Tex.  App.  676 
.332  (1874).  (1887). 

2  Hart  V.  State,  21  Tex.  App.  163  ^  Aiken  v.  State,  10  Tex.  App.  610 
(1887)  ;   Hubby  v.  State,  8  Tex.  App.  (1881). 

597  (1880)  ;  Douglass  (.'.  State,  8  Tex.  '•  Calihvell    v.    State,   41    Tex.    87 

App.  520  (1880);   Harris   v.  State,  8  (1874). 

Tex.  App.  90  (1880).  "10    Tex.    App.   455    (1881);   s.c. 

»  Musick   V.    State,   21    Tex.    App.  38  Am.  Kep.  643. 
69  (1887). 


SEC.  107.]  MURDER.  125 

dangerous  and  evincing  a  depraved  mind,  regardless  of  hu- 
man life,"  within  the  meaning  of  the  statute,^  defining  mur- 
der in  the  second  degree,  is  to  be  found  in  the  act  itself,  and 
the  circumstances  of  its  commission. ^ 

Sec.  107.  Same  —  Other  degrees.  —  In  some  of  the  states 
the  crime  of  murder  is  divided  into  three  or  more  degrees  ; 
but,  as  such  statutes  are  exceptional,  and  do  not  define  the 
same  offence,  no  general  rule  can  be  laid  down  for  their 
interpretation. 

In  "Wisconsin,  an  early  statute  ^  defines  murder  in  the  third 
degree  to  be  the  unlawful  killing  of  a  human  being  without 
any  design  to  effect  death,  by  a  person  engaged  in  the  com- 
mission of  a  felony ;  and  a  later  one  makes  it  a  felony. 
To  sustain  a  verdict  of  murder  in  the  third  degree  under 
this  statute,  it  should  be  shown  that  the  accused  intended 
to  maim,  disfigure,  or  kill.*  To  make  a  killing  without  a 
"design  or  intention  "  murder  in  the  third  degree,  the  felony 
committed,  or  attempted,  from  which  the  implied  malice  is 
derived,  must  have  intimate  relation  and  close  connection 
with  the  killing ;  and  when  the  act  constituting  the  felony  is 
in  itself  dangerous  to  life,  the  killing  must  be  naturally  con- 
sequent to  the  felony.'^ 

In  New  Mexico  it  has  been  held  that  where  there  is  evi- 
dence that  there  was  ill-feeling  existing  at  the  time  of  a 
homicide  between  the  prisoner  and  the  deceased,  and  that, 
the  parties  being  about  thirty-five  yards  apart,  deceased  took 
his  gun  from  his  shoulder  as  if  to  offend  the  prisoner,  but 
did  not  present  or  point  it  at  him,  when  the  latter  stepped 
back  a  few  steps  and  fired  the  fatal  shot,  such  evidence  is 
sufficient  to  support  a  conviction  for  murder  in  the  fifth 
degree.^ 

Sec.  108.  Principals  and  accessories  —  General  rules  as 
to  principals.  —  All  persons  who  participate  in  a  felonious 
homicide,  either  as  actors  or  actual  perpetrators,  or  by  their 

1  Wis.  Rev.  St.,  c.  164,  §  2.  5  Pliemling  v.  State,  46   Wis.  516 

2  Hogan  V.  State,  36  Wis.  226  (1879);  s.c.  3  Am.  Cr.  Rep.  211;  1 
(1874).  N.  W.  Rep.  278. 

3  Wis.  St.  1826,  0.  164,  §§  1,  2.  s  puran  v.  Territory,  1  New  Mex. 

4  State  V.  Hammond,  35  Wis.  315  218  (1857). 
(1874). 


126 


HOMICIDE. 


[chap.  V. 


presence  aiding,  abetting,  and  advising,  are  principals  in  the 
crime.  They  are  divided  into  two  classes,  to  wit :  principals 
in  the  first  degree,  and  principals  in  the  second  degree.  But 
this  distinction  shows  no  difference  in  the  offence,  except 
where  there  is  a  different  punishment  for  each.^ 

It  is  well  established  that  where  two  or  more  persons  con- 
spire to  do  an  unlawful  act,  all  are  liable  for  the  acts  of  each, 
done  in  the  prosecution  of  their  common  purpose ;  ^  as  wliere 
a  homicide  was  committed  by  a  person  with  wlioni  the  jnis- 
oner  acted  in  concert ;  ^  and  all  who  act  in  concert  in  the 
prosecution  of  an  unlawful  act  are  accomplices  or  accessories.* 
But  to  render  this  true  there  must  be  a  community  of  pur- 
pose,"'' mere  mental  approval  or  assent  not  being  sufficient.^ 
The  least  degree  of  concert  or  collusion  is  sufficient  to  make 
the  acts  of  one  the  acts  of  all."  The  acts  of  one  bind  each,^ 
and  make  them  all  equally  guilty.^ 

Where  there  is  a  conspiracy  to  commit  an  offence,  and 
both  or  all  the  conspirators  are  present,  aiding  and  abetting 


1  See  State  v.  Davis,  29  Mo.  891 
(1800)  ;  State  v.  Fley,  2  Brev.  (S.  C.) 
L.  3;]8  (1809);  State  v.  Green,  4 
Strobh.  (S.  C.)  L.  128  (1849). 

2  State  V.  Wilson,  30  Conn.  500 
(1862)  ;  Ferguson  r.  State,  o2  Ga. 
0.38  (1861)  ;  lleid  v.  State,  20  Ga. 
681  (1856);  Tompkins  v.  State,  17 
Ga.  356  (1855)  ;  Smith  v.  People,  25 
111.  17  (1860)  ;  State  i-.  Myers,  19 
Iowa,  517  (1865)  ;  Green  v.  State,  13 
Mo.  382  (1850). 

3  State  V.  Covington,  4  Ala.  003 
(1843)  ;  Carrington  v.  People,  6  Park. 
Cr.  Cas.  330  (186.5). 

4  Davidson  v.  State,  33  Ala.  350 
(1859)  ;  Frank  v.  State,  27  Ala.  37 
(1855)  ;  Pinkard  v.  State,  30  Ga.  757 
(1855) ;  McKeen  v.  State,  7  Te.x.  App. 
631  (1880);  Welsh  v.  State,  3  Tex. 
App.  413  (1878);  Irvin  r.  State,  1  Tex. 
App.  301  (1877)  ;  Rasniek  v.  Com- 
monwealth, 2  Va.  Cas.  356  (1823).  See 
Kuss  on  Cr.  (9th  ed.)  49;  1  Whart. 
Cr.  L.  (8th  ed.)  §  213. 

5  Harrington  v.  State,  36  Ala.  2.36, 
242  (1860)  ;  Thompson  v.  State,  25 
Ala.  41  (1854). 


6  State  V.  Cox,  65  Mo.  29  (1877)  ; 
Connaughty  v.  State,  1  Wis.  169 
(1853). 

'  Brown  t'.  Smith,  83  111.  291  (1876); 
Phillips  V.  State,  6  Tex.  App.  364 
(1879)  ;  Hannon  v.  State,  5  Tex.  App. 
549  (1879)  ;  Wliart.  Ev.  §  1205. 

^  United  States  v.  Goldberg,  7  Biss. 
C.  C.  175  (1876). 

9  Jackson  v.  State,  54  Ala.  234 
(1875)  ;  Smith  v.  State,  52  Ala.  407 

(1875)  ;  Brown  v.  Smith,  83  111.  291 

(1876)  ;  State  v.  Jac-kson,  29  La.  An. 
354  (1877)  ;  Commonwealth  r.  Ilar- 
ley,  48  Mass.  (7  Mete.)  462  (1844); 
Collins  r.  Commonwealth,  3  Serg.  & 
R.  (Pa.)  220  (1817);  United  States 
V.  Nunnemacher,  7  Biss.  C.  C.  Ill 
(1876);  United  States  r.  Donau,  11 
Blatchf.  C.  C.  168  (1873);  Rex  v. 
Parsons,  1  W.  Bl.  392  (1763);  Rex 
V.  Shellard,  9  Car.  &  P.  277  (1840)  ; 
s.c.  38  Eng.  C.  L.  170:  Rex  v.  Mur- 
phy, 8  Car.  &  P.  297  (1837) ;  s.c.  34 
Eng.  C.  L.  744  ;  Reg.  v.  Blake,  6  Q.  B. 
126  (1844);  s.c.  51  Eng.  C.  L.  120; 
Reg.  V.  Slavin,  17  Up.  Can.  C.  P.  205 
(1866)  ;  Reg.  r.  Fellows,  19  Up.  Can. 
Q.  B.  48  (1859). 


SEC.  109.]  MURDER.  127 

the  common  design,  Loth  or  all  are  liable  for  all  the  conse- 
quences ;  ^  particularly  is  this  the  case  in  a  conspiracy  to 
rob.2 

Sec.  109.    Same  —  Principals    in    the    first    degree. —  A 

principal  in  the  first  degree  is  one  who  is  the  actor  or  actual 
perpetrator  of  the  fact.^  AViiere  the  killing  is  done  directly, 
he  must  be  the  slayer,  or  one  of  them,  causing  death  with  his 
own  hand,  or  by  his  own  direct  act,  at  the  time  and  place ; 
but  where  the  homicide  is  committed  by  means  which  do  not 
require  the  presence  of  the  slayer  for  its  commission,  his 
actual  presence  is  not  required.  Thus,  if,  with  malice,  he 
does  the  fatal  act  through  the  medium  of  an  insane  person,^ 
or  a  person  acting  innocently  and  in  total  ignorance  of  tlie 
circumstances,^  he  is  a  principal  in  the  first  degree,  being  tlie 
'  perpetrator  of  the  homicide  as  much  as  if  he  had  committed 
it  with  his  own  hand ;  or,  if  he  dispose  of  a  poisonous  sul> 
stance  purposely,  so  that  another  takes  it  and  dies  therefrom, 
he  is  the  principal  in  the  first  degree.*"  Homicide  in  prosecut- 
ing a  conspiracy  to  rob  is  murder  in  the  first  degree  as  to  all 
engaged  therein.''  It  has  been  held  to  be  murder  in  the  first 
degree  where  a  man  kills  a  woman  struggling  with  her  while 
attempting  to  commit  a  rape.''  Such  is  universally  held  re- 
specting arson,  burglary,  rape,  or  robbery.^  All  that  is 
necessary  to  fix  the  crime  is  the  killing  to  be  done  while  per- 
petrating or  attempting  to  perpetrate  the  felony.^*^     It  is  not 

iBrister    v.    Stnte,    2G    Ala.    107  C.  L.  213 ;  Reg.  r.  Clifford,  2  Car.  & 

(1855);  Peoples.  Woody,  45  Cal.  289  K.  202    (1845);    s.c.   61   Eng.   C.   L. 

(1873);    Commonwealth   v.    O'Brien,  201. 

66  Mass.  (12  Cush.)  84  (1853).  e  gee  ante,  §  4. 

-  State    V.    Heyward,    2    Xott.    &  '  Moynihan    v.    State,  70  Ind.  126 

McC.  (N.  C.)  312  (1820).  (1880)  ;  s.c.  36  Am.  Rep.  178. 

3  1  Hale  P.  C.  235,  015.  8  Buel    v.    People,    78    N.    Y.   492 

■*  See  Blackburn  r.  State,  23  Ohio  (1879)  ;  s.c.  34  Am.  Rep.  555. 

St.  105  (1872)  ;   Reg.  r.  Tyler,  8  Car.  9  People    r.    Xicdiol,    34    Cal.    211 

&   P.   616    (1838);    Re.x    v.   Giles,    1  (1867);    Singleton   v.    State,    1    Tex. 

Moo.  C.  C.  166   (1827);  1  Hale  P.  C.  App.   591;    Primus   r.   State,   2    Tex. 

19.     See  ante,  §  40.  App.  .369  (1877). 

'^  See    Commonwealth    v.   Hill,    11  "  Isham  r.  State,  .38  Ala.  213  (1862)  ; 

Mass.  136   (1814)  ;  Adams  v.  People,  People  v.  Bcaloba,  17  Cal.  389  (1861)  ; 

1  N.  Y.  173   (1848)  ;  Collins  v.  State,  Commonwealth     v.     Pemberton,    118 

3  Heisk.   (Tenn.)   14  (1870) ;  Reg.  v.  Mass.  36   (1875)  ;    Commonwealth    v. 

Mazeau,  9  Car.  &  P.  676  (1840)  ;  s.c.  York,  50  Mass.  (9  Mete.)  93   (1845)  ; 

38  Eng.  C.  L.  393;  Reg.  v.  Michael,  State  v.  Brown,  7  Oreg.  186  (1879)  ; 

9  Car.  &  P.  356  (1840) ;  s.c.  38  Eng.  Roach    v.    State,    8    Tex.  App.  478 


128  HOMICIDE.  [chap.  V. 

necessary  that  the  prisoner  inflict  the  mortal  wound,^  for  it 
is  immaterial  who  did  the  deed.^  Even  his  actual  presence 
is  not  necessary,  for  it  lias  been  held  that  when  a  person  is 
proved  to  have  been  associated  with  others  in  the  commission 
of  a  crime,  although  he  is  absent  when  the  deed  was  com- 
mitted, he  is  deemed  constructively  present.^ 

But  it  was  recently  held  by  the  supreme  court  of  Cali- 
fornia, in  the  case  of  People  v.  Keefer,*  that  where  one  simply 
encourages  another  to  commit  a  misdemeanor,  upon  the  body 
of  a  third  person,  which  did  not  and  could  not  cause  death, 
or  any  serious  injury,  is  not  liable  for  the  murder  of  such 
third  person  by  his  co-conspirator,  Avhen  such  killing  was 
neither  aided,  advised,  nor  encouraged  by  him,  nor  involved 
in  nor  incidental  to  any  act  by  him  aided,  advised,  or  encour- 
aged. 

Sec.  110.    Same  —  Principals  in  the  second  degree.  —  A 

principal  in  the  second  degree  is  one  who  is  present  aiding  and 
abetting  at  the  commission  of  the  homicide.  He  must  be  a 
participant  in  the  act,  and  he  must  be  shown  to  be  either  actu- 
ally or  constructively  present.^  It  is  not  necessary  that  he 
should  bear  any  particular  malice  against  the  person  killed;^ 
but  he  must  do  something  affirmatively  to  show  that  he  is  a 
conspirator  in  the  crime,  or  is  in  some  way  interested  in 
bringing  about  the  success  of  the  attempt  to  kill.  The  mere 
sanction  or  presence  of  a  person,  whether  it  be  passive  or 
constrained,  cannot  render  him  a  principal. ''  By  some  statu- 
tory provisions  all  distinctions  between  princi})als  and  acces- 

(1880);  Pharr  v.  State,  7  Tex.  App.  *  65  Cal.  232  (1884);  s.c.  3  Pac. 

472  (1880)  ;  Tooney  v.  State,  5  Tex.  Rep.  818. 

App.  103  (1870).  5  People  v.  Ah  Pincr,  27   Cal.  489 

1  State  V.  Jarrott,  1  Ired.  (N.  C.)  (1805)  ;  Plummer  r.  Conimonvvealth, 
L.  76  (1840);  United  States  r.  Ross,  1  Bush  (Ky.)  70  (1866);  Butler  v. 
Gall.  C.  C.  024  (1813).  Commonwealth,   2    Duv.    (Ky.)    435 

2  Brister  v.  State,  26  Ala.  107  (1806)  ;  Connaughty  i-.  State,  1  Wis. 
(1855);  People  v.  Woody,  45  Cal.  109  (18.53) ;  Post.  Cr.  L.  350;  1  Hale, 
289  (1873)  ;  State  v.  Antliony,  1  McC.  P.  C.  439. 

(S.  C.)  L.  285  (1821).  "  M?rennan    v.   People,    15    111.    511 

3  State  f.  Hey  ward,  2  Nott.  &  MeC.  (1854)  ;  State  v.  Cockman,  1  Winst. 
(S.  C.)  312  (1820);  s.c.  10  Am.  Dec.  (N.  C.)  L.  95  (1804);  State  v.  Fley, 
004.  See  Commonwealth  v.  Macloon,  2  Brev.  (S.  C.)  L.  338  (1809)  ;  United 
101  Mass.  7  (18(i9)  ;  People  v.  Genet,  States  v.  Ross,  1  Gall.  C.  C.  624 
19  Hun  (N.  y.)  91,  90   (1879)  ;  Desty  (1813). 

Am.  Cr.  L.  §§  llh,  38a,  and  129n.  '  Butler  v.  Commonwealth,  2  Duv. 


SEC.  111.]  MURDER.  129 

sories  before  the  fact  are  abolished,  thus  making  any  person 
criminally  concerned  in  a  homicide  a  principal  whether  he  be 
present  or  absent  at  the  time  of  its  commission .^ 

Sec.  111.  Same  —  Conspirators.  —  Where  two  or  more 
persons  conspire  together,  either  to  commit  a  homicide,  or  to  do 
any  other  unlawful  act,  and,  in  the  execution  of  their  design  a 
homicide  is  committed,  it  is  murder  in  all  who  enter  into  the 
conspiracy,  or  take  part  in  the  execution  of  the  design.^  Thus 
if  several  persons  are  associated  together  in  the  commission 
of  a  robbery,  and  one  of  the  associates  does  not  intend  to  take 
life,  and  prohibits  the  others  from  taking  life ;  yet  if  one  of 
his  associates  takes  life  while  they  are  engaged  in  the  robbery, 
and  in  the  furtherance  of  the  common  purpose  to  rob,  he  is 
as  much  guilty  of  murder  in  the  first  degree  as  though  his 
own  hand  had  given  the  fatal  blow.^  And  one  who,  with 
others,  is  holding  forcible  possession  with  fire-arms  of  land 
claimed  by  other  parties,  may  be  convicted  of  murder  although 
not  he,  but  one  of  his  confederates,  did  the  killing.*  And 
where  A  in  carrying  out  a  conspiracy  with  B  to  take  C  from 
his  house  and  flog  him,  kills  C,  B  is  equally  guilty  of  murder.^ 
In  Kirby  v.  State,^  three  prisoners.  A,  B,  and  C,  conspired  to 
escape  from  jail.  It  was  arranged  that  C  should  secure  the 
jailer.  It  did  not  appear  that  there  was  any  design  to  kill  or 
injure  him,  but  C  killed  him  with  a  piece  of  iron  which  A 
had  concealed  the  morning  before.  At  the  time  C  killed  the 
jailer  A  and  B  were  locked  up.     The  court  held  that  A  and 

(Ky.)    435    (18fi6);     Connaughty    i:  Tex.  App.  13    (1887);    s.c.   5    S.   W 

State,  1  AVis.  169  (1853).  Rep.  165;  Rex  v.  Passey,  7  Car.  &  P, 

1  See  Spies  v.  People  (Anarchists'  282  (1836)  ;  s.c.  32  Eng.  C.  L.  614 
Case),  122  III.  1  (1887);  s.c.  3  Am.  Rex  r.Lockett,  7  Car.  &  P.300  (1836) 
St.  Rep.  320;  9  Cr.  L.  Mag.  829;  6  Rex  v.  Standley,  Russ.  &  Ry.  C.  C 
Am.  Cr.  Rep.  570;  12  N.  E.  Rep.  865.  305  (1816)  ;  s.c.  32  Eng.  C.  L.  684. 

2  Williams  v.  State,  81  Ala.  1  ^  People  v.  Vasquez,  49  Cal.  560 
(1886);  s.c.  1  So.  Rep.  179;  People  (1875);  Stephens  r.  State,  42  Ohio  St. 
V.  Brown,  59  Cal.  .345  (1881)  ;  People  150  (1884)  ;  s.c.  1  Am.  L.  J.  96. 

V.  Vasquez,  49  Cal.  500  (1875)  ;  State  *  Weston    v.    Commonwealth,    111 

i;.  McCahill,  72  Iowa,  111  (1887);  s.c.  Pa.   St.   251    (1885);  s.c.  6   Am.    Cr. 

33  N.  W.  Rep.  559;    Peden  v.  State,  Rep.  436;  2  Atl.  Rep.  191. 

61    Miss.    267    (1883)  ;     Stephens    v.  ^  Peden    v.    State,    61    Miss.    267 

State,  42  Ohio  St.  150  (1884)  ;   Weston  (1883). 

V.    Commonwealth,    111    Pa.    St.   251  ^  23  Tex.  App.  13   (1887);    s.c.   5 

(1885)  ;    s.c.  6  Am.  Cr.  Rep.  4.30;  2  S.  W.  Rep.  165. 

Atl.    Rep.    191 ;     Kirby    v.    State,   23 


130  HOMICIDE.  [chap.  V. 

B  could  be  found  guilty  of  murder.  In  Pliillips  v.  State  ^  it 
appeared  that  the  defendant  went  to  the  deceased's  house  the 
day  of  the  killing,  and  said  that  he  and  three  others,  whom 
he  named,  would  kill  the  deceased  that  night.  The  four  met 
together  and  prepared  ammunition,  and  the  defendant  said, 
"  The  one  that  crawfishes  out  of  this  business,  we  will  all 
turn  on  liim."  One  of  the  four  called  after  they  had  passed, 
some  one  from  their  number  shot  deceased.  The  fifth  person 
testified  that  defendant  was  with  him,  and  that  they  did  not 
stop  and  did  not  hear  or  witness  the  shooting,  and  that  he 
did  not  hear  of  it  until  the  next  morning.  This  constituted 
a  conspiracy  to  kill  deceased,  in  which  the  defendant  was  the 
chief  actor,  though  he  might  not  have  been  present  at  the 
killing ;  and  he  was  principal,  and  guilty  as  such,  within  the 
meaning  of  the  Texas  statute  ^  providing  that  all  persons  who 
act  together  to  commit  a  crime,  in  furtherance  of  the  common 
design,  shall  be  guilty  as  principals. 

Where  death  takes  place  as  the  ordinary  and  probable  result 
of  acts  committed  in  the  due  course  of  the  execution  of  the 
conspiracy,  the  act  of  one  is  the  act  of  all,  and  all  are  guilty, 
whether  present  or  absent ;  for  he  who  enters  into  a  combina- 
tion or  conspiracy  to  do  such  an  unlawful  act  as  Avill  probably 
result  in  the  taking  of  human  life,  must  be  presumed  to  have 
understood  the  consequences  which  might  reasonably  be  ex- 
pected to  flow  from  carrying  it  into  effect,  and,  also,  to  have 
assented  to  the  doing  of  whatever  would  reasonably  or  proba- 
bly be  necessary  to  accomplish  the  objects  of  the  conspiracy, 
even  to  the  taking  of  life.'^  It  is  not  essential  to  the  guilt  of 
one  of  the  conspirators  that,  in  the  preparation  of  the  instru- 
mentalities for  the  carrying  out  of  the   common  design,  he 

1  2fi  Tex.  App.  228  (1888)  ;  s.c.  0  new  men,  an  instruction  to  tlie  effect 
S.  W.  Hep.  557.  that  if  the  defendant  was  engaged  in 

2  Tex.  Pen.  Code,  arts.  74,  70.  a  conspiracy   to  forcibly  compel   the 
"  See  Spies  r.  People   (Anarchists'     new  men  to  leave,  and  in  the  carrying 

Case)   122  111.  1   (1887) ;    s.c.  3  Am.  out   of    such   conspiracy   the   act   of 

St.  Rep.  320;  0  Am.  Cr.  Rep.  570;  9  homicide  was  committed,  such  homi- 

Cr.  L.  Mag.  829;  12  N.  E.  Rej).  805;  cide  was  binding  upon  him  as  much 

Brennan  v.  People,  15  111.  511  (18.")4).  as   if   done   by   himself,  is  not   error. 

On  a  trial   for  murder  coniiiiitted  State  r.  McCahill,  72  Iowa,  111  (1887)  ; 

by  a  mob  of  miners  on  strike,  in  c.ir-  s.c.  9  Cr.  L.  Mag.  37;  33  N.  W.  Rep. 

rying  out  a  conspiracy  to   drive   out  559. 


SEC.  112.]  MURDER.  131 

did  not  know  the  name  of  the  particuLar  individual  \yho  was 
to  use  them. 

Sec.  112.  Same  —  The  Anarcliists'  Case.  —  Where  a  num- 
ber of  persons  conspired  together  to  destroy  the  police  force 
of  a  city  in  case  of  a  certain  event,  as,  for  instance,  a  collision 
between  said  police  force  and  workingmen,  by  throwing  a 
bomb  among  the  police,  it  was  immaterial  that  the  bomb- 
maker  did  not  know  what  particular  person  was  to  throw  it, 
if  he  made  and  delivered  it  in  the  knowledge  that  it  was  to 
be  exploded  by  one  of  a  number  of  persons  having  a  common 
purpose,  and  in  furtherance  of  that  purpose;  and  therefore 
it  was  not  necessary  for  the  thrower  of  the  bomb  to  be  per- 
sonally identified,  but  it  was  sufficient  to  implicate  the  bomb- 
maker  that  it  appeared  that  the  bomb-thrower  belonged  to 
the  conspiracy,  and  threw  the  bomb  to  carry  out  its  arrange- 
ment and  further  its  design.  The  fact  that  the  principal  in 
the  first  degree  was  personally  unknown  to  a  person  charged 
with  aiding,  abetting,  advising,  and  encouraging  a  homicide 
is  not  necessarily  any  obstacle  to  a  conviction. ^  And  it  is 
alike  imimportant  that  the  person  charged  as  a  conspirator 
does  not  know  which  one  of  the  class  of  persons  at  whom  the 
conspiracy  is  aimed  is  to  be  its  victim.  So  it  was  immaterial, 
in  fixiup-  the  g^uilt  of  the  bomb-maker,  that  he  did  not  know 
what  particular  policeman  might  be  killed  or  injured.  The 
design  of  the  conspiracy  virtually  designated  the  body  or 
class  of  men  who  were  to  be  attacked,  and  where  one  of  such 
class  was  killed,  the  guilt  of  the  bomb-maker  was  the  same 
as  though  a  particular  person  had  been  pointed  out  to  him  as 
the  intended  victim.^ 

Where,  in  a  conspiracy  to  accomplish  an  unlawful  purpose, 
the  means  are  not  specifically  agreed  upon  or  understood, 
each  conspirator  becomes  responsible  for  the  means  used  by 
any  co-conspirator  in  the  accomplishment  of  the  purpose  in 
which  they  are  all  at  tlie  time  engaged.^  But  where  the 
Avays  and  means  for  the  accomplishment  of  the  unlawful 
design   are    mutually  agreed   upon  beforehand,   in  order  to 

1  Spies  V.  People(Anarchists'  Case),  '^  Spies  v.  People,  1'22  III.  1  (1887)  ; 

122  111.  1  (1887);  s.c.  .3  Am.  St.  Rep.  s.c.   9  Cr.  L.    Mag.  829;   3   Am.    St. 

320;    G  Am.  Cr.  Rep.  570;    9  Cr.  L.  Rep.  320;    5    Am.    Cr.    Rep.   570;  12 

Mag.  829  ;  12  N.  E.  Rep.  865.  N.  E.  Rep.  865. 


132  HOMICIDE.  [chap.  V. 

place  responsibility  for  the  homicide  upon  co-conspirators, 
the  conspiracy  must  be  carried  out  according  to  the  original 
desio-n ;  but  this  does  not  mean  that  every  detail  of  the  plan 
must  be  executed  as  arranged,  for  that  is  not  always  a  pos- 
sibility ;  but  that  the  general  plan  of  the  conspiracy  shall  be 
carried  out  in  a  manner  corresponding  with  that  arranged  so 
as  to  successfully  accomplish  the  purpose  by  means  agreed 
upon.  Thus  where  the  arrangement  was  to  kill  policemen 
at  a  station-house,  but  the  agents  of  the  conspiracy  killed 
the  policemen  a  short  distance  away  from  the  station-house, 
where  they  had  marched  to  disperse  a  meeting  convened  by 
the  conspirators  and  addressed  by  some  of  them,  there  was 
no  such  departure  from  the  original  plan  as  to  relieve  any  of 
the  conspirators,  whether  present  or  absent,  from  responsibil- 
ity for  the  homicide.  Nor  did  it  matter  that  some  of  the 
conspirators  participating  in  the  attack  made  use  of  pistols 
instead  of  bombs  ;  but  although  the  homicide  was  committed 
by  means  of  the  bomb,  those  conspirators  firing  pistols  for 
the  same  purpose  were  equally  guilty  with  the  one  who 
threw  the  bomb.^ 

The  purpose  of  the  conspiracy  must  be  unlawful.  But 
this  does  not  imply  that  the  means  agreed  upon  to  carry  it 
out  must  themselves  always  be  forcible  and  unlawful ;  it  is 
enough  if  it  is  understood  that  unlawful  and  forcible  means 
are  to  be  used  only  in  case  of  the  failure  of  means  lawful  and 
peaceable.  Thus  the  fact  that  persons  who  formed  a  conspir- 
acy to  bring  about  a  change  of  government  may  not  have 
intended  to  resort  to  force,  unless  in  their  judgment  they 
should  deem  it  necessary  to  do  so,  did  not  make  their  con- 
spiracy any  the  less  unlawful.  Its  object  was  criminal,  and 
when  the  homicide  was  committed  in  furtherance  of  the  com- 
mon design,  and  by  means  previously  understood  and  mutu- 
ally agreed  upon,  all  the  conspirators  were  equally  guilty,  no 
matter  what  their  intention  may  have  been  at  the  time  of 
the  formation  of  the  conspiracy.^  Nor  is  it  always  necessary 
that  the  ultimate  object  souglit  to  be  attained  should  be  the 
same  with  all  the  conspirators,  if  the  immediate  end  in  view 
be  the  same,  and  all  combine  and  work  together  to  accomplish 

1  Spies  r.  People,  122  111.  1  (1887);  Rep.  320;  0  Am.  St.  Rep.  570;  12 
s.c.  9   Cr.  L.   M.ig.  829;   3   Am.    St.     N.  E.  Rep.  865. 


SEC.  113.] 


MURDER. 


133 


it,  and  the  homicide  be  committed  as  a  result  of  such  com- 
bination. Thus  if  men  combine  together  as  conspirators  to 
accomplish  an  unlawful  purpose,  as,  for  instance,  the  over- 
throw of  society  and  government  and  law,  called  by  them  a 
"  social  revolution,"  and  seek,  as  a  means  to  an  end,  by  print 
and  speech,  to  excite  to  tumult  and  riot  and  murder,  another 
class  of  persons  having  a  different  purpose  in  view,  as  in  the 
case  of  workingmen  who  have  entered  upon  a  "strike"  with 
the  view  of  bringing  about  a  reduction  of  the  hours  of  day 
labor,  then,  notwithstanding  the  difference  in  the  ultimate 
objects  desired  to  be  attained  by  the  respective  classes  of 
persons,  the  conspirators  who  advised  and  instigated  the 
others  to  violence  will  be  held  responsible  for  any  murder 
that  may  result  from  their  aid,  advice,  and  encouragement.^ 

Sec.  113.    Same  —  Persons   givingr   aid    or    advice.  —  A 

person  who  is  present  at  a  homicide,  abetting  or  advising  its 
commission,  is  guilty  as  a  principal,  even  though  he  may  not 
have  previously  conspired  to  bring  it  about.^  If  a  murdered 
man  dies  from  the  joint  effect  of  blows  given  by  A  and  B, 
and  B's  blows  are  given  last,  it  is  murder  by  B,  Avhether 
they  acted  in  concert  or  not.'^ 


1  Spies  r.  People,  122  111.  1  (1887)  ; 
B.C.  9  Cr.  L.  Mag.  820;  3  Am.  St. 
Rep.  320;  (3  Am.  St.  Rep.  570;  12 
N.  E.  Rep.  865. 

2  Jordan  r.  State,  79  Ala.  9  (1885)  ; 
Frank  v.  State,  27  Ala.  37  (1855); 
Dumas  v.  State,  62  Ga.  58  (1878); 
Johns  V.  Commonwealth  (Ky)  3 
S.  W.  Rep.  369  (1887);  Thompson 
V.  Commonwealth,  1  Met.  (Ky-)  1-^ 
(1858);  Commonwealth  r.  Chapman, 
65  Mass.  (11  Cush.)  422  (1853) ;  Com- 
monwea/th  v.  Boicen,  13  Mass.  359 
(1816)  ;  s.c.  7  Am,  Dee.  154;  2  Wheel. 
Cr.  Cas.  220;  State  v.  Walker,  98  Mo. 
95,  135  (1888);  s.c.  9  S.  W.  Rep. 
647;  Wynn  r.  State,  63  Miss.  260 
(1885)  ;  Shoemaker  v.  State,  12  Ohio, 
43  (1843)  ;  State  v.  Moran,  15  Oreg. 
262  (1887);  s.c.  14  Pac.  Rep.  419; 
Tharpe  v.  State,  13  Lea  (Tenn.) 
138  (1884);  Fisher  v.  State,  10 
Lea  (Tenn.)  151  (1882);  Beets  v. 
State,  1  Meigs  (Tenn.)    106  (1838); 


Phelps  r.  State,  15  Tex.  App.  45 
(1884)  ;  Trim  v.  Commonwealth,  18 
Gratt.  (Va.)  983  (1868)  ;  Coiinaughty 
r.  State,  1  Wis.  159  (1853). 

Where  W.  lends  A.  a  jiistol,  and  a 
short  time  afterwards  A.  kills  .M.,  and 
W.  is  present  at  the  killing,  and  just 
before  the  firing  exclaims  to  A.,  "  Shoot 
him,"  and  just  after  the  firing,  "  Shoot 
him  again,"  then  W.  is  an  aider  and 
abettor  of  the  crime,  and  under  the 
Mississippi  Code,  1880,  §  2698,  is 
guilty  as  principal,  even  though  W. 
supposed  that  A.  was  shooting  at  J. 
and  not  at  M.  Wynn  v.  State,  ()3 
Miss.  260  (1885). 

3  Fisher  v.  State,  10  Lea  (Tenn.) 
151  (1882). 

In  Johns  v.  Commonwealth  (Ky.), 
3  S.  W.  Rep.  369  (1887),  the  defend- 
ant, after  having  been  overheard  to 
say  to  A.  in  a  low  tone,  "  We  have  a 
fight  fi.xcd  up,  and  we  w^ill  carry  it 
through,"  fired  his  pistol  at  deceased, 


134  HOMICIDE.  [chap.  V. 

But  the  mere  presence  of  a  party  at  the  commission  of  the 
homicide,  whether  passive  or  constrained,  is  not  sufficient  to 
constitute  him  a  principal ;  there  must  be  something  sliown 
in  his  conduct  which  unmistakably  evinces  a  design  to  en- 
courage, incite,  approve  of,  or  in  some  other  manner  afford  aid 
or  consent  to  the  act.^  Neither  is  a  bystander  responsible 
for  the  commission  of  a  homicide,  even  though  lie  takes  part 
in  acts  connected  with  it,  if  the  killing  does  not  result  there- 
from, and  there  is  no  preconcert  between  him  and  the  slayer.^ 
Thus  where  two  persons  are  jointly  indicted  and  tried  for 
murder,  and  the  evidence  shows  that  one  fired  the  fatal  shot, 
while  the  other  cut  the  deceased  with  a  knife  during  the 
difficulty,  the  latter  is  not  guilty  of  murder,  unless  the  cut 
with  the  knife  contributed  to  the  death  of  the  deceased,  or 
unless  preconcert  or  community  of  purpose  between  the 
two  defendants  is  shown,  rendering  each  liable  for  the  acts 
of  the  other.3  And  it  has  been  said  that  if  A  and  B  by 
preconcert  make  an  attack  on  C,  in  which  D,  not  being 
privy  to  their  common  designs,  participates,  this  will  not  be 
murder  in  D  if  death  ensues  from  wounds  inflicted  by  either 
A  or  B.4 

A  person  may  aid  or  abet  or  encourage  a  homicide  by 
standing  upon  watch,  or  keeping  guard,'^  or  by  aiding  or  ad- 
vising another  person  to  administer  a  poisonous  substance, 
as  well  as  by  being-  actually  present  at  the  commission  of  the 
act. 

It  is  said  in  the  case  of  State  v.  Moran^  that  under  a  stat- 
ute '^  providing  that  all  persons  concerned  in  the  commission 
of  a  crime,  whether  they  directly  commit  the  act  constituting 


wlio  disarnied  him,  ami  requested  him  (1855)  ;    Tliarpc    v.    State,    13    Lea 

to  cease  tlie  difliculty.     Shortly  after-  (Tena.)  KW  (1884). 

ward  A.  shot  deceased,  and  defendant  ^  Jordan  v.  State,  7f>  Ala.  0  (1885). 

also  tried  to  slioot  liiiu  with  a  ^^vlw  he  *  Frank  i?.  State,  27  Ala.  ;>7  (1850). 

had    borrowed    after    his    jiistol    was  ^  State   v.   Walker,  08  Mo.  !)5,  135 

taken  from  him.     The  court  held  that  (1888);  s.c.  9  S.  W.  Hep.  (540;    dis- 

a  conviction  of   the  defendant  as   an  sentin<;f  opinion,  US.  W.  Hep.  1133; 

aider    and     abettor    of    the    murder  Slioeinaker    i'.    Slate,    12    Ohio,    43 

should  be  sustained.  (184:5). 

1  Connauglity  v.  State,  1    Wis.  159  «  15  Oreg.  202  (1887);  s.c.  14  Tac 
(1853).  Rep.  419. 

2  See  Jordan    v.   State,   79    Ala.  9  7  Oreg.  Crim.  Code,  §  748. 
(1885);   Frank  v.  State,  27   Ala.  37 


SEC.  114.]  MURDER.  "       135 

the  crime,  or  aid  or  abet  in  its  commission,  though  not  pres- 
ent, are  principals,  evidence  is  admissible  on  a  trial  for  mur- 
der in  the  usual  form,  that  poison  was  administered  to  the 
deceased  by  another  person,  and  that  the  defendant  was  im- 
plicated in  the  deed.^ 

Sec.  114.  Same  —  Accessories  before  the  fact.  —  To  com- 
mit murder,  and  to  be  accessory  thereto,  are  different  oifences. 
An  accessory  before  the  fact  is  one  who,  although  absent  at 
the  time  of  the  commission  of  a  homicide,  j-et  procures,  coun- 
sels, commands,  abets,  or  advises  its  commission  by  another.^ 
A  person  cannot  be  an  accessory  before  the  fact  to  a  homicide 
unless  he  is  absent  at  the  time  of  its  commission ;  for  if  he 
is  present,  he  is  guilt}-  as  principal,  if  guilty  at  all.^  To  con- 
stitute a  person  an  accessory,  there  must  be  some  affirmative 
act  or  encouragement  by  him  looking  towards  its  commission ; 
the  mere  knowledge  that  a  felony  is  about  to  be  committed, 
his  presence,  together  with  his  knowledge  of  it,  will  not, 
without  more,  make  him  an  accessory  to  it  or  to  a  homicide 
resulting  from  it ;  neither  will  the  fact  that  he  is  present,  or 
gives  his  bare  permission  or  tacit  acquiescence  in  the  contem- 
plated felonious  act.^ 

An  accessory  before  the  fact  is  responsible  for  all  the  con- 
sequences of  an  unlawful  act,  which  he  aids,  abets,  advises, 
or  encourages ;  the  only  difference,  if  any,  between  his  guilt 
and  that  of  the  actual  slayer  being  one  of  degree,  and  going 
only  to  the  punishment,  which,  however,  is  usually  the  same 
in  the  case  of  both.  Thus  if  a  person  command  or  encourage 
an  assault,  and  the  party  assaulted  dies  from  the  effects  thereof, 

1  On   the   trial    of   a   prisoner    for  -  State    v.    Cassady,    12    Kan.   550 

murder  who  confessed  that  he  was  of  (1874)  ;  State  v.  Phillips,  24  Mo.  475 

the  party  wiio  robbed  the  store  of  the  (1857)  ;    Norton    v.   People,    8    Cow. 

deceased  on  tlie  niglit  of  the  murder,  (N.  Y.)  137    (1828)  ;    Jones  v.  State, 

but  declares   tliat   lie  was  about  two  13  Tex.  1G8  (1854)  ;  United  States  v. 

hundred  yards  off  wlien  the  gun  was  Ramsay,  1  Hempst.  C.  C.  481  (1887)  ; 

fired,  and  did  not  go  to  the  store,  but  Re.x  v.  Cooper,  5  Car.  &  P.  535  (1833)  ; 

had   the  plunder  brought  to  him  by  s.c.  24  Eng.  C.  L.  694 ;  Rex  t;.  Gordon, 

tlie  others,  the  jury  found  that  he  was  1  Leach  C.  C.  515  (1789)  ;  1  East  P. 

constructively     present,    aiding    and  C.  352  ;  1  Hale  P.  C.  015. 
abetting   the  murder,  and    the    court  ^  Rpx  v.  Gordon,  1  Leach  C.  C.  515 

refused  to  set  aside  the  verdict.    Trim  (1789);  1  East  P.  C. -352;  1  Hale  P. 

r.    Commonwealth,    18    Gratt.    (Va.)  C.  G15. 
983(1868).  4  1  Hale  P.  C.  616. 


136        *  HOMICIDE.  [chap.  V. 

the  adviser  is  guilty  of  the  murder  as  accessory  before  the 
fact.i 

The  means  used  need  not  be  those  prescribed  or  advised, 
if  of  the  same  nature  as  to  the  result  of  their  use,  and  the 
accomplishment  of  the  object  sought.  So  where  a  person 
advises  the  killing  of  another  by  poisoning,  but  the  homicide 
is  committed  by  shooting,  the  adviser  is  still  guilty  as  acces- 
sory .^  The  communication  between  the  accessory  and  the 
slayer  must  be  direct,^  unless  the  act  be  directly  towards  the 
person  slain,  as,  for  instance,  an  invitation  by  the  accessory 
to  a  person  to  go  to  a  certain  place,  in  order  that  he  may 
there  be  killed.* 

The  aid  or  encouragement  given  must  continue  up  to  the 
time  of  the  commission  of  the  murder,  or  of  the  acts  from 
which  it  results.  If  the  adviser  countermands  his  order,  or 
withdraws  his  advice  or  encouragement  before  the  slayer  has 
committed  any  overt  act,  he  is  not  guilty.^ 

An  accessory  may  usually  be  indicted,  tried,  and  convicted, 
either  before  or  after  the  trial  of  the  person  charged  as  ])nn- 
cipal ;  and  the  dismissal  of  the  charge  against  the  latter  does 
not  discharge  the  accessory.^  From  the  nature  of  the  offence, 
accessories  before  the  fact  are  generall}^  charged  as  being 
advisers  or  abettors  of  the  crime  of  murder  in  the  first  degree  ; 
but  it  has  been  held  that  a  person  may  be  convicted,  as  acces- 
sory before  the  fact,  of  murder  in  the  second  degree.''^ 

Sec.  115.  Same  —  Accessories  after  the  fact. — An  acces- 
sory after  the  fact  is  one  who  receives,  shelters,  comforts, 
assists,  relieves,  or  counsels  a  person  whom  he  knows  to  be 
guilty  of  a  homicide,  either  as  principal  or  accessory  before 
the  fact.^  The  offence  cannot  be  committed  by  a  mere  pas- 
sively allowing  the  felon  to  escape ;  but  it  is  complete  when- 
ever any  affirmative  acts  are  done  which  tend  to  hinder  or 
delay  liis  apprehension   or  trial.-^     Thus  where    two  persons 

1  See  1  Hale  P.  C.  617.  «  State    v.    I'liiUips,    24    Mo.    475 

2Fost.  369.  (1857). 

3  Reff.  V.  Blackburn,  6  Cox  C  C.          ^  Jones  v.  State,  13  Tex.  168  (1854). 

333  (1853).  R  See  White  v.  People,  81    III.  3.33 

■*  Rej,'.  r.  Manning,  2  Car.  &  K.  887.     (1876)  ;  Ilarrel  v.  State,  30  Miss.  702 

903   (1849)  ;    s.c.  61   Eng.  C.  L.  886,     (1861)  ;  2  Mawks.  e.  28,  §  1. 

902.  9  Dalt.  350;  1  Hale  P.  C.  619. 

6  1  Hale  P.  C.  618. 


SEC.  115.]  MURDER.  137 

are  alone  at  the  time  of  the  killing  of  another,  and  but  one 
does  the  killing,  and  the  other  does  not  aid,  abet,  or  assist  in 
the  killing,  but  afterwards  they  both,  with  guilty  knowledge, 
conceal  the  fact  of  the  crime,  the  one  not  participating  in  the 
crime  is  only  guilty  as  an  accessory  after  the  fact,  and  is  not 
guilty  of  murder.i 

At  common  law  the  relationship  of  husband  and  wife 
excuses  the  wife  for  harboring,  sheltering,  or  concealing  a 
felon,  she  being  subject  to  his  control ;  ^  and,  under  some 
statutes,  the  excuse  of  relationship  is  made  available  by  a 
parent,  brother,  or  sister.^ 

1  White  r.  People,  81  111.  333  903  (1849) ;  s.c.  61  Eng.  C.  L.  886, 
(1876).  902;  1  Hale  P.  C.  621. 

2  Keg.  V.  Manniug,  2  Car.  &  K.  887,  ^  ggg  Mass.  Gen.  Stat.,  c.  1  68,§  6  ; 

VVhart.  Horn.  (2d  ed.)  §  35i. 


CHAPTER  VI. 

MANSLAUGHTER. 

Sec.  116.  Definition. 

Sec.  117.  Distinction  between  manslaughter  and  murder  —  Moral  character 

of  manslaugliter. 

Sec.  118.  Kinds  of  manshiughter. 

Sec.  119.  Voluntary  manslaughter  defined. 

Sec.  120.  Reducing  homicide  to  manslaughter. 

Sec.  121.  Same  —  Rule  in  Alabama  —  First  degree. 

Sec.  122.  Same — Rule  under  federal  statutes. 

Sec.  123.  Same — Provocation   causing  passion  —  What    provocation    suf- 
ficient. 

Sec.  124.  Same  —  Words  towards  slayer. 

Sec.  125.  Same  —  Intoxication  of  deceased. 

Sec.  126.  Same —  Rule  in  Georgia. 

Sec.  127.  Same  —  Rule  in  New  York. 

Sec.  128.  Same  —  Cooling  time. 

Sec.  129.  Same  —  Interview  sought  by  defendant. 

Sec.  130.  Same  —  Words  toward  female  relative. 

Sec.  131.  Same  —  Words  spoken  in  defendant's  absence. 

Sec.  132.  Same  —  Difficulty  begun  by  defendant. 

Sec.  133.  Same  —  Banter  by  deceased. 

Sec.  134.  Same  —  Wound  given  by  deceased. 

Sec.  135.  Same  —  Killing  in  liouse  of  deceased. 

Sec.  136.  Same  —  Striking  with  fist  or  weapon. 

Sec.  137.  Same  —  Shooting  unarmed  adversary  —  Provocation. 

Sec.  138.  Same  —  Killing  attacking  officer  —  Pursuit  by  ofiicer. 

Sec.  139.  Same  —  Cooling  time. 

Sec.  140.  Same  —  Instruction  as  to  adequate  cause  —  Passion  as  criterion. 

Sec.  141.  Same  —  Acts  of  preparation  —  Preparing  weapon. 

Sec.  142.  Same — Preventing  defendant's  dei)arture. 

Sec.  143.  Same  —  By  the  killing  of  anotlier. 

Sec.  144.  Same — By  adultery  witli  the  slayer's  wife. 

Sec.  145.  Same  —  By  criminal  intimacy  witli  a  female  relative. 

Sec.  146.  Mutual  conibat. 

Sec.  147.  Same  —  Equal  terms. 

Sec.  148.  Same  —  Previous  malice  not  presumed. 

Sec.  149.  Trespass. 

Sec.  150.  Homicide  in  resisting  arrest. 
138 


SEC.  116.] 


MANSLAUGHTER. 


139 


Sec.  151.  Same  —  Attempted  arrest  by  officer  witliout  warrant. 

Sec.  152.  Homicide  in  making  arrest. 

Sec.  153.  Homicide  wliile  committing  an  unlawful  act  less  than  felony. 

Sec.  154.  Ivilling  one  in  an  attempt  to  kill  anollier. 

Sec.  155.  Homicide  in  preserving  peace. 

Sec.  156.  Involuntary  nianslaugliter  —  What  constitutes. 

Sec.  157.  Same  —  How  committed  —  By  gross  carelessness  or  negligence. 

Sec.  158.  Same — Negligent  use  of  firearms. 

Sec.  159.  Same  —  Misconduct  and  negligence  in  steamboat  navigation. 

Sec.  160.  Same  — By  assault. 

Sec.  161.  Same  —  By  attempting  abortion. 

Sec.  102.  Same  —  By  threats  causing  fright. 

Sec.  163.  Same  —  By  undue  correction  by  persons  in  authority. 

Sec.  164.  Same — Upon  person  under  arrest. 

Sec.  165.  Same  —  By  obstructing  railroad  track. 

Sec.  116.  Definition.  —  Manslaughter  is  tlie  unlawful  kill- 
ing of  a  liunian  being  witliout  malice,  either  express  or  im- 
plied, and  without  excuse.^  Manslaughter  is  distinguished 
from  nuirder  by  the  absence  of  the  malice,  either  express  or 


1  2  Bouv.  L.  Diet.  (15th  ed.)  149. 
See  People  v.  Crowey,  56  Cal.  36 
(1880)  ;  People  r.  Freel,  48  Cal.  436 
(1874);  People  v.  March,  6  Cal.  543 
(1856);  People  v.  Milgate,  5  Cal. 
127  (1855);  Hadley  v.  State,  58  Ga. 
309  (1877)  ;  Stcdces  r.  State,  18  Ga. 
17  (1855)  ;  Studstill  v.  State,  7  Ga.  2 
(1849)  ;  Keynolds  v.  State,  1  Kelly 
(Ga.)  222  (1846);  Murphy  v.  People, 
37  111.448  (186.3);  Murphy  r.  State, 
31  Ind.  511  (1869);  Cummonicenlth  v. 
Websler,  59  Mass.  (-5  Cush.)  295  (1850); 
ConimonueMlth  r.  Riley,  Thach.  C.  C. 
(Mass.)  471  (1837);  Commonwealth 
V.  Selfridge  (Mass.),  1  Horr.  &  T.  2 
(1806);  s.c.  Whart.  Hom.  (2d  ed.) 
692;  State  v.  Knight,  43  Me.  11 
(1857)  ;  Long  r.  State,  52  Miss.  23 
(1876)  ;  Green  v.  State,  28  Miss. 
687  (1855)  ;  State  v.  Zellers,  7  N.  J. 
L.  (2  Halst.)  221  (1824)  ;  Ex  parte 
Tayloe,  5  Cow.  (N.  Y.)  51  (1825)  ; 
People  V.  Austin,  1  Park.  Cr.  Cas. 
(N.  Y.)  154  (1847);  United  St.ates  v. 
Travers  (N,  Y.),  2  Wheel.  Cr.  Cas. 
506  (1814)  ;  State  i'.  Johnson,  3  Jones 
(N.  C.)  L.  266  (1855)  ;  State  v.  Nor- 
ris,   1   Hayw.    (N.   C.)'429    (1796); 


State  V.  Turner,  Wright  (Ohio)  23 
(1831)  ;  Commonwealth  v.  Drum,  58 
Pa.  St.  9  (1868)  ;  Pennsylvania  r. 
Lewis,  Addis.  (Pa.)  279  (1796)  ; 
State  V.  Smith,  10  Rich.  (S.  C.)  L. 
341  (1857)  ;  State  v.  Stark,  1  Strobh. 
(S.  C.)  L.  479  (1847)  ;  Beets  v.  State, 
Meigs  (Tenn.)  106  (1838)  ;  Isaacs 
V.  State,  25  Tex.  174  (1860)  ;  Drake 
V.  State,  5  Tex.  App.  661  (1879)  ; 
King  I'.  Commonwealth,  2  Va.  Cas. 
78  (1817);  Commonwealth  v.  Mitch- 
ell, 1  Va.  Cas.  116  (1796)  ;  McWiiirt's 
Case,  3  Gratt.  (Va.)  594  (1846)  ; 
Respublica  v.  Mulatto  Bob,  4  U.  S. 
(4  Dall.)  146  (1795),  bk.  1  L.  ed. 
776;  United  States  v.  Outerbridge, 
5  Sawy.  C.  C.  620  (1868)  ;  United 
States  v.  Wiltberger,  3  Wash.  C.  C. 
515  (1819)  ;  Rex  v.  Mawgridge,  Ke- 
lynge  119  (1665)  ;  Lord  Conwallis' 
Case,  2  St.  Tri.  (fol.  ed.)  730  (1678); 
s.c.  7  How.  St.  Tr.  144;  4  Bl.  Conim. 
190;  2  Bish.  Cr.  L.  (7th  ed.)  §  672; 
Desty  Cr.  L.  §  128;  East  P.  C.  232; 
1  Hale  P.  C.  466;  Harris'  Cr.  L.  169  ; 
1  Hawk.  P.  C,  c.  .30,  §§  2,  3;  Roscoe's 
Cr.  Ev.  723;  1  Russ.  on  Cr.  (5th  Eng. 
ed.)  810;  Stephen's  Cr.  L.  Art.  223-, 


140 


HOMICIDE. 


[chap.  VI. 


implied,  which  is  the  essence  of  murder :  ^  but  it  has  been 
said  that  it  is  no  defence  to  an  indictment  for  manslaughter 
that  the  evidence  shows  the  homicide  to  have  been  committed 
with  malice  aforethought,  and,  therefore,  to  have  been  mur- 
der ;  but  that  the  defendant  may  be  convicted  of  manslaugh- 
ter as  charged  in  the  indictment.  In  Commonwealth  v. 
McPike,^  the  court  say :  "  The  party  on  trial  has  no  reason- 
able ground  for  complaint.  The  government  have  elected 
to  proceed  against  him  for  the  minor  offence,  and  the  defend- 
ant has  secured  to  him  all  the  privileges  which  are  incident 
to  a  trial  for  such  offences.  It  is  not  for  him  to  say  that 
his  crime  has  another  element  in  it,  which  if  charged  in  the 
indictment,  would  have  constituted  it  a  higher  offence  and 
one  more  severely  punishable." 

The  two  crimes  are  also  distinguished  by  the  fact  that  in 
manslaughter  there  can  be  no  accessories  before  the  fact,  be- 
cause there  is  no  time  for  premeditation  or  deliberation  upon 
the  act.^ 

Sec.  117.  Distinction  between  manslaughter  and  mur- 
der —  Moral  character  of  manslaughter.  —  Manslaughter 
differs  from  murder  in  this,  that,  though  the  act  which  occa- 


Wash.  Cr.  L.  80;  Anderson's  L.  Diet. 
654. 

1  See  People  v.  Crow3%  56  Cal.  36 
(1880)  ;  People  v.  Freel,  48  Cal.  436 
(1874)  ;  People  v.  March,  G  Cal.  543 
(1850)  ;  Peoi)le  v.  Mil<,^ate,  5  Cal. 
127  (1855) ;  Iladley  v.  State,  58  Ga. 
309  (1877);  Stokes  v.  State,  18  Ga. 
17  (1855)  ;  Murphy  v.  People,  37  111. 
448  (18fi5)  ;  Murphy  v.  State,  31  Ind. 
511  (1860)  ;  State  v.  Knifrht,  43  Me. 
11  (1857)  ;  Coiiimonwealth  v.  Wehs/er, 
69  Mass.  (5  Cush.)  295  (1850)  ;  Com- 
monwealth r.  Selfridj^e  (Mass.)  1 
Horr.  &  T.  2  (1806)  ;  s.c.  Whart. 
Horn.  (2d  ed.)  692  (18  );  Green  v. 
State,  28  Miss.  687  (1885)  ;  Ex  parte 
Tayloe,  5  Cow.  (N.  Y.)  51  (1825); 
United  States  r.  Travers,  2  Wlieel. 
Cr.  Cas.  (N.  Y.)  506  (1814)  ;  State  v. 
Johnson,  3  Jones  (X.  C.)  L.266  (1855); 
State  V.  Turner,  Wright  (Ohio)  23 
(1831);  Coinmoinvealth  v.  Drum,  58 
Pa.    St.    9    (1868) ;    I'ennsylvania    r. 


Lewis,  Addis.  (Pa.)  279  (1796)  ;  State 
V.  Tookey,  2  Rice  (S.  C.)  Dig.  104 
(1838)  ;  State  v.  Smith,  10  Rich 
(S.  C.)  L.341  (1857)  ;  State  v.  Stark, 
1  Strohh.  (S.  C.)  L.  479  (1847)  ; 
King  V.  Commonwealth,  2  Va.  Cas. 
78  (1817)  ;  Commonwealth  v.  Mitch- 
ell, 1  Va.  Cas.  116  (1796)  ;  xMcWhirt's 
Case,  3  Gratt.  (Va.)  594  (1846); 
liespuhlica  r.  Mulatto  Bob,  4  U.  S. 
(4  Dall.)  146  (1795)  ;  bk.  1  L.  ed. 
776  ;  United  States  v.  Outerbridge, 
5  Sawy.  C.  C.  620  (1868)  ;  United 
States  V.  Wiltberger,  3  Wash.  C.  C. 
515  (1819)  ;  4  Bl.  Comm.  190;  2  Bish. 
Cr.  L.  §  672;  Desty  Cr.  L.  §  128; 
East  P.  C.  232;  1  Hale  P.  C.  4(;(; ; 
Moore  Cr.  L.  §  309;  Wash.  Cr.  L. 
80. 

-'  57  Mass.  (3  Cush.)  181  (1849). 

3  1  Bish.  Cr.  L.  (3d  ed.)  678;  2 
Bouv.  L.  Diet.  (15th  ed.)  149  ;  1  Hale 
P.  C.  437;  1  Russ.  on  Cr.  (5th  Eng. 
ed.)  485. 


SEC.  119.]  MANSLAUGHTER.  141 

sions  the  death  be  uiihiwful,  or  likely  to  be  attended  with 
bodily  mischief,  yet  the  malice,  either  express  or  implied,  is 
presumed  to  be  wanting ;  and  the  act  being  imputed  to  the 
infirmity  of  luunan  nature,  the  punishment  is  proportionably 
lenient.^  Harris  says  that  in  manslaughter  "  Ave  shall  find^ 
acts  varying  to  tlie  utmost  in  their  moral  gravity  and  offen- 
siveness.  Perhaps  on  no  other  charge  do  persons  more  often 
appear  in  the  dock  and  leave  it  without  a  stain  on  their  char- 
acter. To  take  one  class  of  examples,  it  constantly  happens 
after  an  accident  in  a  mine  or  on  a  railway  that  some  of 
those  engaged  in  the  mismanagement  of  the  one  or  the  other 
are  required  to  meet  the  charge  of  manslaughter  preferred 
against  them." 

Sec.  118.  Kinds  of  manslaiigiiter.  —  At  common  law 
manslaughter  is  of  two  kinds,  namely,  voluntary  manslaugh- 
ter, resulting  from  an  injury  intentionally  inflicted ;  and  in- 
voluntary manslaughter,  resulting  from  injury  unintentionally 
inflicted."^  Dr.  Wharton  thinks  that  this  distinction  between 
voluntary  and  involuntary  manslaughter  is  now  obsolete  in 
most  jurisdictions  ;  as  concerns  the  common  law,  he  says  that 
"  unless  it  should  be  required  by  the  statute,  the  terms  '  vol- 
untary '  and  '  involuntary '  are  not  introduced  now  either  in 
the  indictment,  verdict,  or  sentence."  ■* 

Sec.  119.  Voluntary  niauslaug liter  defined.  —  Voluntary 
manslaughter  is  homicide  committed  witli  design  or  intent  to 
kill  or  to  inflict  some  serious  bodily  liarm,^  formed  upon  a 
sudden  quarrel  in  the  first  transport  of  passion,  and  before 
reason  has  time  to  resume  her  entire  control.''     To  constitute 

1  See  1  Russ.  on  Cr.  (5th  Bug.  ed.)  (1869)  ;  Nye  v.  People,  35  Mich.  16 
810.  (1876)  ;    Ex    parte    Tayloe,   5    Cow. 

2  Harris'  Cr.  L.  (3d  ed.)  169.  (N.  Y.)  51  (1825)  ;  Enrin  v.  State,  29 

3  See  Anderson's  L.  Diet.  654;  2  Oliio  St.  186  (1876)  ;  s.c.  23  Am. 
Bouv.  L.  Diet.  (15th  ed.)  149;  1  Rep.  732;  2  Am.  Cr.  Rep.  251 ;  Coni- 
Whart.  Cr.  L.  (9th  ed.)  §§  .304,  305.  monwealth    ,-.    Drum,    58    Pa.    St.    9 

*  Whart.  Cr.   L.   (9th  ed.)    §   305.  (1868);    State    v.    Smith,     10    Rich. 

See  Whart.  Horn.  (2d  ed.)  §  7.  (S.  C.)  L.  341  (1857)  ;  Kin^  r.  Coni- 

5  See  Perry    v.    State,  43  Ala.  21  monwealth,    2    Va.    Cas.    78    (1817)  ; 

(1860)  ;  People  v.  Jamarillo,  57  Cal.  1  Bl.  Comm.  190;  Desty  Cr.  L.  §  108  b; 

111   (1880);    Brown  v.  State,  28  Ga.  1  East  P.  C.  232  ;  Harris'  Cr.  L.  (3d 

215(1859);  Stokes  ?;.  State,  18  Ga.  17  ed.)  169;  1  Hawk.  P.  C,  c.  30,  §  3 ; 

(1855)  ;    Bruiier  r.  State,  58  Ind.  159  Whart.  Cr.  Horn.  §  5. 
(1877)  ;  Murphy  v.  State,  31  Ind.  511  «  Schnier  y.People,23ni.21  (1859); 


142 


HOMICIDE. 


[chap.  VI. 


voluntary  manslaughter,  the  killing  must  be  clone  when  the 
reason  is  disturbed  or  obscured  by  passion  to  an  extent  which 
might  render  ordinary  persons  liable  to  act  rashly  Avithout 
reflection,  and  from  passion  rather  than  judgment;  there 
must  be  an  adequate  provocation  for  the  passion,  and  the 
killing  must  be  without  previous  malice.^ 

Sec.  120.    Reducing    homicide    to    manslaughter.  —  To 

reduce  homicide  from  murder  to  manslaughter,  it  is  not  neces- 
sary that  "  the  reason  of  the  party  should  be  dethroned,"  and 
that  he  should  act  "  in  a  whirlwind  of  passion  "  ;  but  there 
must  be  sudden  passion  upon  reasonable  provocation,  to  nega- 
tive the  idea  of  malice. ^ 

A  positive  intent  to  kill  is  not  requisite  if  there  be  an  in- 
tentional use  of  unlawful  force  wrongly,  calculated  to  cause 
death  or  great  bodily  harm.^ 


Powers  r.  State,  87  Ind.  154  (1882)  ; 
Trimble  v.  Commonwealth,  78  Ky. 
177  (1879)  ;  State  v.  Griffin,  34  La. 
An.  38  (1882);  State  v.  Zellers,  7 
N.  J.  L.  (2  Halst.)  243  (1824)  ;  Kil- 
patrick  v.  Commonwealth,  31  Pa.  St. 
201  (1858);  McWhirt's  Case,  3  Gratt. 
(Va.)  G05  (1846);  Anderson's  L. 
Diet.  654  ;  4  Bl.  Comm.  191-193. 

1  Smith  V.  State,  83  Ala.  26  (1887)  ; 
s.c.  3  So.  Rep.  551 ;  Ex  parte  Brown, 
Go  Ala.  446  (1880);  Perry  v.  State, 
43  Ala.  21  (1869)  ;  State  r.  Rhodes, 
1  Houst.  Cr.  Cas.  (Del.)  476  (1877)  ; 
Fogarty  v.  State,  80  Ga.  450  (1888)  ; 
s.c.  5  S.  E.  Rep.  782 ;  Gann  v.  State, 

30  Ga.  67  (1860);  Stokes  v.  State, 
18  Ga.  17  (1855);  Bruner  r.  State, 
58  Ind.  159  (1877);  Murphy  v.  State, 

31  Ind.  511  (1869)  ;  Ex  parte  Moore, 
30  Ind.  197  (1868)  ;  Creek  v.  State,  24 
Ind.  151  (1865) ;  State  v.  Hockett,  70 
Iowa,  442  (1886) ;  s.c.  9  Cr.  L.  Mag. 
208;  30  N.  W.  Rep.  742;  State  v. 
Spangler,  40  Iowa,  365  (1875)  ;  State 
V.  Dcfklotts,  19  Iowa,  447  (1865)  ; 
Maker  v.  reople,  10  Mich.  212  (1862); 
S.c.  81  Am.  Dee.  781  ;  Kilpatrick  v. 
Commonwealth,  31  Pa.  St.  198  (1858); 
Young  V.  State,  11  Humph.  (Tenn.) 
200  (1850)  ;  Seals  v.  State,  59  Tenii. 


(3  Baxt.)  459  (1874)  ;  Hinton  v. 
State,  24  Tex.  454  (1859). 

-  Young  I'.  State,  11  Humph. 
(Tenn.)  200  (1850). 

3  Williams  V.  State,  83  Ala.  16 
(1887)  ;  s.c.  3  So.  Rep.  616;  Harring- 
ton (;.  State,  83  Ala.  9  (1887)  ;  s.c.  3 
So.  Rep.  425;  White  v.  State,  84  Ala. 
421  (1887);  s.c.  4  So.  Rep.  598; 
McManus  v.  State,  36  Ala.  285  (1860)  ; 
Montgomery  v.  State,  11  Ohio,  424 
(1842). 

An  instruction  as  to  manslaughter, 
as  follows :  "  If  you  find  from  the 
evidence  beyond  a  reasonable  doubt, 
that  the  defendant  .  .  .  did  take  the 
life  of  the  said  James  Fowler  by 
means  of  the  weapon  described  in  the 
indictment  .  .  .  and  that  the  killing,  if 
any,  was  done  in  the  heat  of  blood  or 
passion,  upon  a  sudden  quarrel,  and 
upon  reasonable  provocation,  and 
without  malice,  express  or  implied, 
and  you  further  so  find  that  it  was 
not  excusable  or  justifiable  ...  he 
is  guilty  of  manslaughter,"  —  is  a 
clear,  concise,  and  correct  definition 
of  manslaughter  as  applicable  to  the 
evidence.  State  i\  Ilockett,  70  Iowa, 
442  (1880);  s.c.  9  Cr.  L.  Mag.  208; 
30  N.  W.  Kep.  742. 


SEC.  123.]  MANSLAUGHTER.  143 

Sec.  121.    Same  —  Rule  in   Alabama  —  First   degree. — 

To  constitute  jnurder  in  the  first  degree  under  the  Alabama 
Code  1  tliere  must  be  either  a  positive  intention  to  kill,  or  an 
act  of  violence  from  which,  ordinarily,  in  the  usual  course  of 
events,  death  or  great  bodily  harm  may  result.^  If  an  act 
amounting  to  manslaughter  be  voluntarily  committed,  the 
statute,  without  regard  to  the  circumstances  of  provocation, 
fixes  the  grade  of  the  offence,  and  pronounces  it  manslaugh- 
ter in  the  first  degree.'^ 

Sec.  122.  Same  — -  Rule  undei*  federal  statutes.  —  Under 
the  provisions  of  the  judicial  act^  giving  jurisdiction  to  the 
circuit  courts  of  the  United  States,  over  murder  committed 
on  the  high  seas,  the  death  as  well  as  the  mortal  blow  must 
occur  on  the  high  seas.  The  federal  courts  have  no  cogni- 
zance of  the  case  where  the  wound  was  given  on  high  seas 
but  the  death  took  place  on  shore.^ 

There  is  no  act  of  Congress  which  makes  punishable  an 
unlawful  stroke  on  the  sea,  without  malice,  followed  by 
death  on  shore ;  but  the  guilty  person  may  be  convicted  of 
an  assault  with  a  dangerous  weapon.^ 

Sec.  123.  Same  —  Provocation  causing  passion  —  What 
provocation  sufficient.  — •  The  provocation  sufficient  to  re- 
duce an  intentional  killing  from  the  grade  of  murder  to  that 
of  manslaughter  must  arise  at  the  time  of  the  commission  of 
the  offence,  or  before  the  passion  of  the  slayer  has  had  time 
to  cool."     The  provocation  by  deceased  must  be   the  direct 

1  Alabama  Code,  §  4301.  "  Studstill  r.  State,  7  Ga.  2  (1849)  ; 

2  Harrington  r.  State,  83  Ala.  9  Patterson  r.  State,  66  Ind.  190  (1879)  ; 
(1887);  s.c.  3  So.  Rep.  425;  qualifying  Bechtelheiiner  v.  State,  54  Ind.  1:^8 
McManus  1-.  State,  36  Ala.  285  (1860).  (1876);    Wall   v.  State,   51   Ind.  4-53 

3, Johnson    r.    State,    17    Ala.   618  (1875);    Field    v.    State,   60    Ind.    15 

(1850).  (1875)  ;     Allison    v.    State,    42    Ind. 

*§  11.  354  (1873);    Miller  v.  State,  37   Jml. 

5  United  States  v.  McGill,  4  U.  S.  432  (1871) ;  Murphy  ;;.  State,  31  Ind. 
(4  Dall.)  426  (1806);  bk.  1  L.  ed.  511  (1869);  Ex  parte  Moore,  30  Ind. 
894;  United  States  v.  MagiU,  1  Wash.  197  (1868)  ;  Commonwealth  v.  xMink, 
C.  C.  463  (1806).  Compare  United  123  Mass.  422  (1877)  ;  Commonwealth 
States  r.  Bladen,  1  Cr.  C.  C.  548  v.  Webster,  59  Mass.  (5  Ciish.)  295 
(1809)  ;  United  States  v.  Armstrong,  (1850)  ;  Commonwealth  v.  Seifridge 
2  Curt.  C.  C.  440  (1855);  United  (Mass.),  1  Horr.  &  T.  2  (1806)  ;  Corn- 
States  V.  Imbert,  4  Wash.  C.  C.  702  monwealth  v.  Drum,  58  Pa.  St.  9 
(1827).  (1868)  ;  Boyett  v.  State,  2  Tex.  App. 

6  United  States  v.  Armstrong,  2  93  (1878);  United  States  v.  WjU- 
Curt.  C.  C.  446  (1855).  berger,  3  Wash.  C.  C.  515  (1819). 


144 


HOMICIDE. 


[chap.  VI. 


and  controlling  cause  of  the  passion  ;  ^  and  it  must  be  such 
as  naturally  and  instantly  to  produce,  in  the  minds  of  per- 
sons ordinarily  constituted,  the  highest  degree  of  exaspera- 
tion, rage,  anger,  sudden  resentment,  or  terror,  rendering  the 
mind  incapable  of  cool  reflection.'-^  Thus  ordinary  provoca- 
tion given  by  a  woman  or  child  to  a  man  of  average  strength, 
even  though  it  may  amount  to  giving  a  blow,  does  not,  it 
seems,  reduce  a  homicide  from  nun-der  to  manslaughter, 
because  manifestly  not  sufficient  to  cause  uncontrollable  pas- 
sion.3  The  question  whether  certain  undisputed  facts  are 
sufficient  provocation  to  reduce  a  homicide  from  a  murder  to 
manslaughter  is  one  of  law,  for  determination  by  the  court ;  * 
but  the  questions  whether,  in  the  particular  case  under  con- 
sideration, there  was  adequate  and  reasonable  provocation, 
and  whether  the  passions  had  had  reasonable  time  to  subside, 
are  generally  for  the  jury  to  determine.^ 

Sec.  124.  Same  —  Words  towards  slayer.  —  Mere  words 
towards  the  slayer  by  deceased,  however  grievous,  are  not 
sufficient  to  reduce  a  killing  from  murder  to  manslaughter ; 
nor  are  indecent,  provoking  actions,  or  gestures,  expressive 
of  reproach  or  contempt,*^  although  the  use  of  insulting  or 


1  Boyett  V.  State,  2  Tex.  A  pp.  03 
(1878)." 

2  Flanagan  v.  State,  46  Ala.  703 
(1871)  ;  People  v.  Freeland,  0  Cal.  96 
(18-30);  Silgar  v.  People,  107  111. 
563  (1883)  ;  Patterson  v.  State,  60 
Inil.  185  (1879)  ;  Nichols  v.  Common- 
wealth, U  Bush  (Ky.)  575  (1875)-; 
Thomas  v.  State,  61  Miss.  00  (1883) ; 
Preston  v.  State,  25  Miss.  383  (1853)  : 
State  V.  Ellis,  74  Mo.  207  (1881)  ;  1 
Whart.  Or.  L.  (0th  ed.)  455;  McKin- 
ney  r.  State,  8  Tex.  App.  620  (1880)  ; 
Boyett  V.  State,  2  Tex.  App.  93  (1878)  ; 
Territory  v.  Catton  (Ttali),  10  Pac. 
Rep.  902  (1888). 

•'  (-ommonwealth  r.  Moslrr,  4  Pa. 
St.  264  (1840). 

4  State  V.  Dunn,  18  Mo.  410  (1853)  ; 
State  r.  Craton,  6  Ired.  (N.  C.)  L.  1()4 
(1845). 

5  Mahcr  r.  People,  10  Midi.  212 
(1802)  ;  s.o.  81  Am.  Dec.  781  ;  Mackey 
V.  State,  13  Tex.  App.  300  (1883). 


«  Watson  V.  State,  82  Ala.  10 
(1886)  ;  Ex  parte  Brown,  65  Ala.  446 
(1880)  ;  People  r.  Murback,  04  Cal. 
369  (1883)  ;  People  v.  Turley,  50  Cal. 
469  (1875);  People  v.  Butler,  8  Cal. 
435  (1857)  ;  State  v.  Draper,  1  Houst. 
Cr.  Cas.  (Del.)  531  (1878)  ;  State  r. 
Buchanan,  1  Houst.  Cr.  Cas.  (Del.) 
79  (1859);  Bird  v.  State,  55  Ga.  317 
(1875) ;  Jackson  v.  State,  45  Ga.  198 
(1872);  Boss  v.  State,  59  Ga.  248 
(1877);  Hawkins  v.  State,  25  Ga. 
207  (1858)  ;  Happ  v.  Commonwealtli, 
14  B.  Mon.  (Ky.)  615  (1854)  ;  State 
r.  Leonard,  0  La.  An.  420  (1851); 
Stater.  Fuentes,  5La.  An.  427  (1850)  ; 
State  r.  McNeill,  92  N.  C.  812  (1885)  ; 
State  )•.  Carter,  70  N.  C.  20  (1877)  ; 
State  V.  Lipsey,  3  Dev.  (N.  C.)  L. 
485  (1832);  State  v.  Merrill,  2  Dev. 
rX.  C.)  L.  209  (1829)  ;  State  v.  Taek- 
ett,  1  Hawks.  (N.  C.)  L.  210  (1828)  ; 
Wall  r.  State,  18  Tex.  082  (1857); 
United  States  v.  Carr,  1  Woods  C.  C. 


SEC.  128.]  MANSLAUGHTER.  145 

abusive  or  violent  language  may  give  sufficiency  to  an  assault 
otherwise  insufficient.^ 

Sec.  125.  Same  —  Intoxication  of  deceased.  —  It  is  said 
in  the  case  of  Harris  v.  State,^  that  where  one  kills  another 
on  mere  provocation  by  words,  the  jury  may  consider  the  fact 
that  the  person  killed  was  drunk  when  he  uttered  the  words, 
when  the  question  is  whether  the  words  were  uttered  with  a 
deliberate  purpose,  or  are  merely  low  and  idle  expressions, 
also  whether  the  deceased  was  struck  when  he  uttered  the 
words,  in  determining  whether  there  was  an  excuse  for  the 
assault  of  the  accused  on  the  deceased. 

Sec.  12(3.  Same — Rule  in  Georgia. — It  has  been  said 
that  the  language  of  the  Georgia  Code,'^  providing  that  "  prov- 
ocation by  words,  threats,  menaces,  or  contemptuous  gestures 
shall  in  no  case  be  sufficient  to  free  the  person  killing  from 
the  guilt  and  crime  of  murder,"  does  not  imply  that  provoca- 
tion by  mere  threats,  &c.,  can  excuse  a  homicide  committed 
under  circumstances  rendering  it  manslaughter.* 

Sec.  127.  Same — Rule  in  New  York.  —  Under  the  rule 
in  New  York  the  "heat  of  passion,"  mentioned  in  the  statu- 
tory definition  of  manslaughter,  affords  the  intended  protec- 
tion to  the  accused,  whether  the  provocation  was  produced 
by  acts  or  words,  if  the  provocation  was  such  as  was  ade- 
quate to  produce  it.^ 

Sec.  128.  Same — Cooling  time.^  —  In  the  case  of  State 
V.  Jacobs,"  the  defendant  visited  his  tenant  and  remonstrated 
with  him  about  burning  rails,  and  as  the  defendant  was  about 

480  (1872)  ;  1  Arch.  C.  Pr.  740  ;  East  Seals  v.  State,  59  Tenn.  (3  Baxt.)  459 

P.  C.  251;    Harris'    Cr.   L.    (3d   ed.)  (1874). 

169;    Steph.  Cr.  L.  art.  223  et   seq.;  i  Reg.  v.  Smith,  4  Fost.  &  F.  1099 

Washb.  Cr.  L.  81;  Whart.  Horn.  (2d  (1865). 

ed.)  §  393  et  seq.;    1   Hale  P.  C.  456.  2  34  Ark.  469  (1879). 

See  Commonwealth  ;;.  Biron,  4  U.  S.  ^  Georgia  Code,  §  4259. 

(4    Dall.)   125    (1792);    bk.   1   L.   ed.,  *  Jackson    v.    State,    45    Ga.    198 

769.       Compare    Harris    v.    State,    34  (1872). 

Ark.  469   (1879)  ;    Wilson  v.  People,  ^  Wilson    v.   People,    4    Park.    Cr. 

4  Park.  Cr.  Cas.  (N.  Y.)  619  (1859)  ;  Cas.  (N.  Y.)  619  (1859). 

State  V.  Jacobs,  28   S.  C.  29   (1887)  ;  «  See  ante,  §  68  ;  post,^  139. 

s.c.   4   S.   E.  Rep.   799  ;    Bonnard  v.  "^  28  S.  C.  29   (1887)  ;   s.c.  4  S.  E. 

State,  25  Tex.  App.  173  (1888)  ;  s.c.  Rep.  799. 

7  S.  W.  Rep.  862 ;  8  Am.  St.  Rep.  431 ; 


146  HOMICIDE.  [chap.  VI. 

leaving,  the  deceased  addi-essed  abusive  language  to  him. 
Shortly  afterwards  the  defendant  returned  and  shot  deceased. 
In  order  to  reduce  the  killing  under  such  circumstances  to 
manslauo'hter  it  must  have  been  done  before  there  had  been 
time  for  the  passion  to  cool;  consequently  it  was  important 
to  consider  whether  the  killing  was  done  in  consequence  of 
what  had  occurred  when  defendant  was  first  at  deceased's 
house,  or  when  he  came  last. 

Sec.  129.    Same  —  Interview  sought  by  defendant.  —  In 

a  case  where  the  evidence  showed  that  the  defendant,  without 
hostile  intent,  sought  an  interview  with  deceased,  who  be- 
came enraged  and  assaulted  the  defendant,  inflicting  pain, 
and  the  defendant,  under  tlie  passion  thus  engendered, 
killed  him,  it  was  said  that  the  pain  would  amount  to  "  ade- 
quate cause,"  so  as  to  reduce  the  killing  to  manslaughter, 
and  that  the  failing  of  the  court  to  affirmatively  so  charge 
was  error.i 

In  Bonnard  v.  State  ^  the  defendant  sought  deceased  to 
ask  pay  for  certain  spurs  which  he  claimed  that  deceased 
had  stolen  from  him,  and  with  no  intention  of  provoking  a 
quarrel,  but  one  ensued  in  which  the  defendant,  in  the  heat  of 
passion  caused  by  the  violence  and  abuse  of  the  deceased,  shot 
and  killed  the  deceased,  and  it  was  held  that  such  killing  was 
manslaughter.  The  court  say  :  "  If  defendant  did  not  intend 
to  provoke  a  difficulty  with  deceased,  but  souglit  the  inter- 
view with  him  solely  for  the  purpose  of  demanding  pay  for 
his  spurs,  and  a  difficulty  ensued  in  which  the  defendant,  on 
account  of  abuse  heaped  upon  him  by  deceased,  voluntarily 
slew  him  in  heat  of  passion  engendered  by  the  present  abuse, 
taken  in  connection  with  the  previous  wrong  done  him  by 
deceased,  and  the  circumstances  all  together  combined  were 
of  such  a  character  as  to  produce  '  adequate  cause  '  sufficient 
to  render  the  mind  incapable  of  cool  reflection,  then  such 
killing  would  be  manslaughter."  ^ 

1  Bonnard  ?•.  State,  25  Tex.  App.  205  (1887)  ;  s.c.  5  S.  W.  Rep.  231  ; 
173  (1888);  s.c.  8  Am.  St.  Uep.  431 ;  Jolinson  r.  State,  22  Tex.  App.  206 
7  S.  \V.  Rep.  802.  (1887);  s.c.  2  S.  W.  Rep.  GOO;   Wad- 

2  25  Tex.  App.  173  (1888);  s.c.  8  linfftnn  v.  State,  19  Tex.  App.  266 
Am.  St.  Rep.  4.".1  ;  7  S.  W.  Rep.  862.  (1886). 

^  See  Howard  i-.  State,  23  Tex.  App. 


SEC.  130.]  MANSLAUGHTER.  147 

Sec.  180.    Same  —  Words    toward    female    relative. — 

Some  statutory  enactmeilts  provide  that  the  use  of  insulting 
words  towards  a  female  relative  of  the  slayer  shall  be  ade- 
quate cause,  or  sufficient  provocation,  to  reduce  the  killing 
of  the  pei-son  speaking  them  from  murder  to  manslaughter. ^ 
Under  a  statute  whicli  uses  the  term  "insulting  words 
towards  a  female  relative,"  they  need  not  be  uttered  in  her 
presence.  The  term  includes  insulting  words  concerning 
her,  whether  she  was  present  or  not ;  ^  and  it  has  also  been 
lield  that  the  Avords  need  not  be  uttered  in  the  presence  of 
the  slayer  in  order  to  constitute  an  adequate  cause  for  the 
liomicide,^  but  where  they  are  not  so  uttered,  it  must  appear 
that  before  the  homicide  the  defendant  was  informed  of  them, 
and  that  he  killed  by  reason  of  the  passion  so  induced,  and 
from  no  other  cause.* 

During  the  lifetime  of  a  man's  wife,  her  daughter  is  his 
"  female  relative "  within  the  meaning  of  such  a  statute.'' 
As  to  what  are  "  insulting  words  "  towards  a  female  relative 
it  has  been  said  that  the  expression  ''  damned  son  of  a  bitch  " 
is  not  within  the  legal  meaning  of  the  terms  ''  insulting  words 
toward  a  female  relative,"  as  those  words  are  used  in  the 
statute  defining  manslaughter.^ 

The  Texas  Penal  Code  makes  a  homicide  manslaughter 
and  not  murder  where  it  is  induced  by  insulting  words  or 
conduct  toward  defendant's  female  relative,  if  the  killing 
occurred  as  soon  as  the  parties  met  after  knowledge  of  the 
insult;  thus  it  is  said  in  the  case  of  Richardson  v.  State,' 
which  was  a  trial  for  murder,  that  it  was  error  to  refuse  an 

1  See  People  v.  Turley,  50  Cal.  4G9  (1870)  ;  Hill  v.  State,  5  Tex.  App.  2 

(1875);     Williams  v.   State,  3    Heisk.  (1879). 

(Teiin.)  .377   (1872)  ;    s.c.   1    Gr.   Cr.  -  Hudson  v.  State,  0  Tex.  App.  505 

]?ep.  255;  Williams  r.  State,  24  Tc-x.  (1879). 

App.  637   (1888)  ;    s.c.  7   S.  W.   Kep.  -  Xiland  v.  State,  19  Tex.  App.  160 

333  ;  Melton  v.  State,  24  Tex.  App.  47  (188()). 

(1888)  ;  s.c.  5  S.  W.  Rep.  652  ;  Sim-  •*  Orman  v.  State,  22  Tex.  App.  604 

mons^•.State,23  Tex.  App. 653  (1887);  (1887);  s.c.  58   Am.  Rep.  662;  3  S. 

Orman   v.   State,   22   Tex.   App.   604  W.   Rep.  408.      See   Hill  v.  State,  5 

(1887);     Clanton    v.    State,    20   Tex.  Tex.  App.  2  (1879). 

App.  615  (1886)  ;  Niland  i:  State,  19  s  Clayton    v.  State,  20   Tex.   App. 

Tex.  App.  166  (1886)  ;  Eams  v.  State,  615  (1886). 

10  Tex.  App.  421  (1881)  ;  Richardson  '■  Simmons  v.  State,  23  Tex.  App. 

V.    State,   9   Tex.   App.   612    (1881)  ;  653  (1887)  ;  s.c.  5  S.  W.  Rep.  208. 

Hudson   V.    State,   6    Tex.   App.   565  '  9  Tex.  App.  612  (1881). 


148  HOMICIDE.  [chap.  VI. 

instruction  asked  bj  tlie  accused  that  if  the  deceased  used 
insultinsf  words  or  conduct  towards  a  female  relative  of  the 
accused  at  the  place  of  the  killing,  this  would  constitute  a 
sui^cient  adequate  cause  to  reduce  the  offence  from  murder 
to  manslaughter,  if  the  defendant  be  guilty  of  any  offence. 

Sec.  131.    Same  —  Words  spoken  in  defendant's  absence. 

—  In  Orman  v.  State,^  the  defendant  being  informed  that  the 
deceased  had  publicly  stated  that  defendant's  mother  and 
sister  had  accumulated  all  the  money  defendant  had  by  pros- 
titution with  negro  men,  consulted  an  attorney  concerning 
the  punishment  for  killing  under  such  circumstances,  and 
shortly  afterward,  upon  meeting  the  deceased,  asked  him  if  he 
would  take  back  what  he  had  said  about  his  mother  and  sister ; 
and  on  his  answering  ''  No,"  shot  and  killed  him.  On  trial  of 
the  defendant  for  murder  the  court  charged  the  jury  that 
they  should  find  defendant  guilty  of  manslaughter  if  they 
believed  that  the  shooting  was  done  "under  the  immediate 
influence  of  sudden  passion  . .  .  arising  from  an  adequate  cause, 
such  as  'insulting  words  or  conduct'  of  deceased  Howards 
female  relatives'  of  defendant."  This  charge  was  held  to 
be  erroneous  in  requiring-  the  killing  to  take  place  under  the 
immediate  influence  of  "sudden"  passion;  which  instruction 
would  have  been  proper  under  the  Texas  statute  '^  only  in  a 
case  where  the  defendant  heard  the  insulting  language  or 
witnessed  the  conduct ;  and  that,  notwithstanding  no  excep- 
tions were  taken  nor  instructions  asked,  yet,  as  there  was  a 
strong  probability  of  injiuy  to  defendant,  the  judgment  would 
be  reversed.'^ 

Where  the  evidence  sliowed  that  the  deceased  made  inde- 
cent proposals  to  the  defendant's  wife,  and  cursed  her,  in  the 
morning,  while  the  defendant  Avas  absent ;  that  his  wife  told 
him  about  it  when  he  returned  at  noon  ;  that  wlien  he  met  the 
deceased,  at  eight  o'clock  in  the  evening,  he  killed  him,  the 
court  held  that  to  reduce  the  homicide  to  manslaughter,  the 
provocation  under  which  the  defendant  acted  must  have 
arisen  at  the  time  of  the  commission  of  the  offence.'* 

1  22  Tex.  App.  604  (1887)  ;  s.c.  58  (1887) ;  s.c.  58  Am.  Hop.  002  ;  3  S.  W. 
Am.  Rep.  002 ;  .3  S.  W.  Rep.  408.  Rep.  4()8. 

2  Tex.  Pen.  Code,  art.  509.  *  Williams  c.  State,  24  Tex.  App. 
8  Orman  v.  State,  22  Tex.  App.  004     637  (1888)  ;  s.c.  7  S.  W.  Rep.  733. 


SEC.  131.]  MANSLAUGHTER.  149 

In  Melton  v.  State,^  wliere  the  defendant  killed  the  de- 
ceased for  using  insulting  language  concerning  his  daughter, 
but  not  until  the  second  meeting  after  he  was  informed  of 
the  insults,  the  court  held  that  under  these  facts  the  homi- 
cide was  not  manslaughter. 

An  assault  by  the  deceased,  where  not  a  justification  or 
excuse,  may  still  be  sufficient  provocation  to  reduce  the  kill- 
ing to  manslaughter ;  and  ordinarily  the  provocation  is  com- 
plete when  the  persoii  of  tlie  defendant  is  touched,  with 
apparent  insolence,  whether  the  assailant  was  armed  or  not.''^ 
But  it  is  thought  that  it  is  not  every  assault  that  will  reduce 
a  homicide  from  murder  to  manslaughter.  A  blow  with  the 
hand  may  or  may  not  afford  such  provocation  as  to  reduce 
the  crime  of  killing  to  manslaughter,  according  to  the  facts 
and  attendant  circumstances.^ 

On  a  trial  for  murder  by  shooting  the  deceased,  an  instruc- 
tion that,  "  if  the  jury  believed  from  the  evidence  that  imme- 
diately before  the  firing  of  the  pistol  by  the  defendant  the 
deceased  had  assaulted  the  defendant,  or  had  given  to  him  a 
serious  and  highly  provoking  injury  sufficient  to  excite  an 
irresistible  passion  in  a  reasonable  person,  and  that  such  provo- 

1  24  Tex.  App.  47  (1888)  ;  s.c.  4  Anderson,  4  Nev.  265  (1868)  ;  State 
S.  W.  Rep.  574.  v.  Crane,  95  N.  C.  619  (1886)  ;  State  v. 

2  See  Stewart  v.  State,  78  Ala.  4-36  Gaskins,  93  N.  C.  547  (1885) ;  State 
(1885) ;  Ex  parte  Warrick,  73  Ala.  57  v.  Tackett,  1  Hawk.  (N.  C.)  L.  210 
(1882)  ;  Judge  v.  State,  58  Ala.  406  (1820)  ;  State  v.  Yarbrough,  1  Hawks. 
(1877)  ;  Atkins  v.  State,  10  Ark.  568  (N.  C.)  L.  78  (1820)  ;  State  v.  Bar- 
(1855);  McCoy  v.  State,  8  Ark.  451  field,  8  Ired.  (N.  C.)  L.  344  (1848); 
(1848)  ;  People  v.  Turley,  50  Cal.  State  v.  Sizemore,  7  Jones  (N.  C.)  L. 
469  (1875)  ;  State  v.  List,  1  Houst.  206  (1859)  ;  State  v.  Ramsey,  5  Jones 
Cr.  Cas.  (Del.)  133  (1863);  State  v.  (X.  C.)  L.  195  (1857);  State  v.  Brod- 
Downliam,  1  Houst.  Cr.  Cas.  (Del.)  nax,  Phil.  (N.  C.)  L.  41  (1866)  ;  Com- 
45  (1858)  ;  Bird  v.  State,  55  Ga.  317  monwealth  v.  Drum,  58  Pa.  St.  9 
(1875);  Thompson  r.  State,  55  Ga.  (1868);  Draper  v.  State,  4  Baxt. 
47  (1875)  ;  Evans  v.  State,  33  Ga.  4  (Tenn.)  246  (1874)  ;  Holly  v.  State, 
(1861)  ;  Golden  v.  State,  25  Ga.  527  10  Humph.  (Tenn.)  141  (1849)  ;  Bon- 
(1858)  ;  McGuffie  v.  State,  17  Ga.  497  nard  v.  State,  25  Tex.  App.  173  (1888) ; 
(1855)  ;  Ray  v.  State,  15  Ga.  223  s.c.  8  Am.  St.  Rep.  431 ;  7  S.  W.  Rep. 
(1854);  State  f.  Fitzsimmons,  63  Iowa,  862;  Williams  v.  State,  15  Tex.  App. 
656  (1884)  ;  s.c.  19  N.  W.  Rep.  821 ;  617  (1884) ;  Ruthford  v.  State,  15  Tex. 
State  V.  Abarr,  39  Iowa,  185  (1874);  App.  236  (1884);  Tickle  v.  State,  6 
Kurd  V.  People,  25  Mich.  405  (1872)  ;  Tex.  App.  623  (1879)  ;  United  States 
State  V.  Rheams,  34  Minn.  18  (1885)  ;  v.  Armstrong,  2  Curt.  C.  C.  446  (1855)  ; 
State  V.  Watson,  95  Mo.  411  (1888)  ;  I  Wliart.  Cr.  L.  (9th  ed.)  §  456. 
States. Blunt, 91  Mo. 503  (1887);  State  3  Stewart  v.  State,  78  Ala.  436 
V.  Levigne,  17  Nev.  435  (1883)  ;  State  v.  (1885). 


150  HOMICIDE,  [chap.  VI. 

cation  did  excite  in  the  defendant  a  sudden  violent  impulse 
and  irresistible  passion,  and  that  acting  under  such  passion  he, 
the  defendant,  fired  upon  and  killed  the  deceased,  the  jury 
should  find  the  defendant  guilty  of  manslaughter,"  was  held 
to  be  erroneous,  because  it  is  not  every  assault  that  will 
reduce  a  homicide  from  murder  to  manslaughter.  The  proof 
in  this  case  showed  that  if  there  was  any  assault  on  the  pris- 
oner by  the  deceased,  it  was  of  the  slightest  kind.^ 

Throwing  a  chair  over  the  head  will  not  be  sufficient  provo- 
cation to  reduce  a  homicide  to  manslaughter  where  the  de- 
ceased and  the  prisoner  were  quarrelling,  and  as  the  prisoner 
approached  the  deceased  he  pitched  over  his  head  a  chair, 
without  touching  him,  and  with  no  apparent  intention  to  do 
so,  because  this  was  no  provocation,  as  nothing  less  than  an 
actual  assault,  or  battery,  or  an  attempt  to  assault  within 
striking  distance,  is  a  legal  provocation  to  reduce  murder 
to  manslaughter.^ 

Sec.  132.     Same  —  Difficulty    bejfun    l>y    defendant. — 

Where  the  difficulty  was  begun  by  the  defendant,  and  homi- 
cide results,  it  will  be  simply  manslaughter,  if  there  was 
no  premeditated  design  to  kill.  Thus  where  A  had  posses- 
sion of  ore  belonging  to  B,  which  B  demanded,  and  which 
A  refused  to  give  up  unless  he  should  be  paid  twenty-five 
dollars,  B  drew  a  pistol  with  threats ;  A  got  the  pistol  away 
from  B,  and  threw  him  down  and  beat  him ;  B  arose,  drew 
another  pistol,  and  shot  and  killed  A  ;  the  court  held  that  a 
verdict  of  manslaughter  was  not  impro})erly  rendered,  and 
that  instructions  under  which  B  would  have  been  found  not 
guilty  were  properly  refused.'^ 

It  is  said  in  Ex  parte  Warrick  *  that  if,  immediately  pre- 
ceding the  striking  of  the  fatal  blow,  the  defendant  was 
"grabbed  at  by  deceased,"  who  was  considering  to  strike  him, 
the  homicide  would  not  be  above  voluntary  manslaughter. 

In  Thompson  v.  State  ^  opprobrious  words  were  used  by  the 
defendant  to  the  deceased,  and  the  latter  struck  him  with  a 
small  walking-stick.     The  court  held  that  the  blow  could  not 

1  State  V.  Anderson,  4  Nev.  205  ^  State  v.  Lcvignc,  17  Nev.  435 
(18(;S).  (18H:}). 

2  State  V.  Barfield,  8  Ired.  (N.  C.)  •*  7:5  Ala.  57  (1882). 
L.  344  (1848).                                                 6  65  Ga.  47  (1875). 


SEC.  136.]  MANSLAUGHTER.  151 

be  considered  as  such  considerable  jn'ovocation  as  ^yolIld  rebut 
the  presumption  of  malice  on  the  part  of  the  defendant  in 
killing  the  deceased,  provided  the  battery  was  not  dispropor- 
tioned  to  the  insult  offered. 

Sec.  133.  Same  —  Banter  by  deceased. — In  McGuffie 
V.  State,^  it  is  said  that  where  one  person  presents  a  gun  to 
another  and  subsequently  takes  it  down,  and  the  other  de- 
clared that  if  raised  again  he  would  throw  a  brickbat  at  him, 
and  the  gun  was  raised,  and  the  brickbat  was  thrown,  and  B 
Avas  shot,  in  consideration  of  the  threat  or  banter  of  B,  such 
killing  may  have  been  no  more  than  voluntary  manslaughter, 
and  the  court  say  that  it  was  error  in  the  trial  court  to  charge 
that  "  if  the  first  presenting  of  the  gun  was  with  malicious 
intent,  notwithstanding  wliat  followed,  the  killing  was  mur- 
der." 

Sec.  134.  Same  —  Wound  given  by  deceased.  —  A  wound 
given  by  the  deceased  is  not  in  all  cases  sufficient  cause  to 
justify  a  homicide.  Thus  it  ha:i  been  held  in  North  Carolina,'^ 
in  a  case  where  A  and  B  wanted  to  fight  but  were  prevented, 
A  going  away,  and  on  his  return  B  presented  a  loaded  gun 
and  ordered  A  to  stand ;  A  then  went  away  again  and  returned 
with  a  gun ;  whereupon  B  shot  and  wounded  A  and  set  down 
his  gun,  and  A  shot  and  killed  B  ;  and  the  court  held  that 
he  was  guilty  of  murder. 

Sec.  135.    Same — Killing  in  house  of  deceased.  —  It  is 

said  in  McCoy  v.  State  ■"  that  a  man  has  a  right  to  order  an- 
other to  leave  his  house,  but  has  no  right  to  put  liim  out  by 
force  until  gentle  means  fail;  and  if  he  attempt  to  use  vio- 
lence in  the  outset  and  is  slain,  it  will  not  be  a  higher  offence 
than  manslaughter  in  the  slayer,  if  there  be  no  previous 
malice. 

Sec.  136.    Same  —  Striking  with  list  or  weapon. —  It  has 

been  said  that  where  a  person  on  being  struck  a  heavy  blow 
with  the  fist,  a  moment  after  wounds  his  assailant  with  a 
deadly  weapon  from  which  wound  death  ensues,  he  is  guilty 
of  manslaughter  only.* 

1  17  Ga.  497  (1855) .  ■*  State  r.  Tackett,  1  Hawks.  (N.  C.) 

2  State?;.  Crane, 95  N.C.  619  (1886).     L.  210  (1820);    State  v.   Yarbrough, 

3  8  Ark.  451  (1848).  1  Hawks.  (N.  C.)  L.  78  (1820). 


152  HOMICIDE.  [chap.  VI. 

It  is  held  in  State  v.  Curiy^  that  when  one  person  strikes 
another  a  violent  blow  with  a  heavy  pole  pointed  with  iron, 
and  a  fight  ensnes,  in  which  the  assailant  used  a  deadly 
weapon,  with  which  he  knocks  down  his  adversary  and  dis- 
ables him,  and  follows  up  his  blows  with  great  violence  and 
cruelty,  and  kills  him ;  on  account  of  the  great  provocation 
in  the  first  instance  and  the  passion  naturally  produced  by 
the  conflict,  this  is  but  manslaughter. 

Sec.  137.  Same  —  Shooting' unarmed  adversary  —  Prov- 
ocation. —  One  who  in  the  daytime,  in  the  presence  of  by- 
standers to  whom  he  might  have  appealed  for  protection, 
shoots  an  unarmed  drunken  man  with  whom  he  is  struggling 
and  from  whom  he  is  in  possible  danger  of  receiving  a  thresh- 
ing, and  after  once  shooting  him  follows  as  he  runs  and 
shoots  him  again,  is  guilty  of  manslaughter.'^ 

Sec.  138.    Same  —  Killings    attacking-    officer  —  Pursuit 

by  officer.  —  In  State  v.  Cantieny,'^  on  the  trial  of  an  indict- 
ment for  murder,  the  evidence  showed  that  tlie  defendant  and 
two  companions  were  on  the  streets  of  a  city  at  three  o'clock 
in  the  morning,  and  were  somewhat  intoxicated  and  disor- 
derly ;  that  the  deceased,  a  police  officer,  attempted  to  induce 
them  to  leave  the  streets;  that  they  resisted  his  efforts,  and 
tried  to  get  his  club  away  from  him ;  that  the  deceased  arrested 
them,  and  the  defendant  ran  ;  that  during  pursuit,  and  before 
the  deceased  had  discharged  his  pistol,  although  he  had  at- 
tempted to  do  so,  the  defendant  drew  a  revolver  and  continued 
fleeing ;  that  the  deceased  shot  at  him  without  effect,  and  the 
defendant  instantly  turned  and  shot  the  deceased,  inflicting  a 
fatal  wound;  the  court  held  that  a  verdict  of  manslaughter 
in  the  second  degree  would  be  sustained. 

Where  one  fired  a  pistol  at  an  officer  and  fled  to  his  house 
pursued  by  the  latter,  who,  with  a  pistol  in  his  hand  and  with 
threats  to  kill  the  former,  forced  o})en  the  door,  and  was  him- 
self killed  in  the  rencontre  which  ensued,  it  was  held  that 
the  killing  amounted  only  to  manslaughter.* 

1  1  Jones  (X.  C.)  L.  280  (1854).  3  PA  Minn.  1  (1885)  ;  s.c.  6  Am.  Cr. 

2  State   I-'.    Fitzsininioiis,   O-"]    Iowa,     Ecp.  418. 

656  (1884);  s.c.  19  N.  \V.  Uep.  821.  ■*  State  v.  List,  1    Houst.  Cr.   Cas. 

(Del.)  133  (1863). 


SEC.  141.]  MANSLAUGHTER.  153 

Sec.  139.  Same  —  Cooling  time.^ — It  has  been  said  by 
the  supreme  court  of  ^Michigan  that  where  one  is  assailed 
and  pursued  into  his  house  and  through  one  room,  if  he  then 
arms  himself  and  shoots  and  kills  his  assailant,  where  the 
whole  transaction  occupies  less  than  fifteen  minutes,  that 
there  was  no  interval  for  cooling  time.^ 

Sec.  140.  Same  —  Instruction  as  to  adequate  cause  — 
Passion  as  criterion.  —  In  Tickle  v.  State  ^  on  a  trial  for 
murder,  an  instruction  to  the  jury  to  the  effect  that  an  assault 
and  battery  on  the  defendant  by  the  deceased  would  not  con- 
stitute an  "adequate  cause,"  such  as  to  reduce  the  offence 
to  manslaughter,  unless  it  produce  severe  pain  or  bloodshed, 
was  held  to  be  erroneous.  It  seems  that  the  adequate  cause 
which  may  justify  manslaughter  may  be  estimated  not  by  the 
pain  but  by  passion,  notwithstanding  the  fact  that  the  statute 
declares  that  an  assault  causing  pain  and  bloodshed  shall  be 
deemed  an  "  adequate  cause."  ^ 

Sec.  141.  Same  —  Acts  of  preparation  —  Preparing- 
weapon.  —  Acts  of  preparation  to  meet  and  resist  an  ag- 
gressor cannot  be  urged  by  him  as  provocation.  The  draw- 
ing of  a  weapon  with  intent  to  use  it  upon  one  of  two  brothers 
present  will  justify  the  i)rocurement  of  a  stick  with  which  to 
resist  the  intended  assault ;  and  hence  possession  of  a  stick 
will  not  be  such  provocation  as  will  reduce  to  manslaugliter 
a  homicide  committed  by  the  assailant.^ 

Where  one  laid  in  wait  and  shot  another  dead,  the  court 
held  that  the  murder  Avas  not  reduced  to  manslaughter  by 
the  fact  that  the  accused  had  gone  bail  for  the  deceased,  who 
had  refused  to  appear  in  court  according  to  his  recognizance, 
and  had  made  violent  threats  to  resist  his  bail,  and  on  the 
nifflit  before  the  homicide  had  shot  at  him  in  his  carriao'e.^ 

In  the  case  of  State  v.  Abarr,"  B,  a  large  man,  while  road- 
making  twenty  feet  from  A,  called  him  lazy ;  angry  words 
were  exchanged,  and  B  said  he  could  whip  A  ;  A  answered, 

•     1  See  ante,  §§  08,  128.  5  People    v.    Turley,    50    Cal.   469 

2  Hurd  r.  People,  25  Mich.  405  (1875);  Bird  v.  State,  55  Ga.  317 
(1872).  (1875). 

3  6  Tex.  App.  023  (1870).  «  State  r.  Downliain,  1  Houst.  Cr. 
*  See  Williams  1-.  State,  15  Tex.  App.     Cas.  (Del.)  45  (1858). 

617(1884);    Putherford   i:  State,   15  ^  39  Iowa,  185  (1874),       * 

Tex.  App.  236  (1884). 


154  HOMICIDE.  [chap.  VI. 

"  Pitch  in,  go  your  length  " ;  B  started  towards  A  and  took  out 
and  opened  a  knife  almost  unobserved ;  B  attempted  to  seize 
him,  and  A  stabbed  B  at  his  heart,  killing  him ;  and  the  court 
held  that  a  verdict  of  manslaughter  oufjht  not  to  be  disturbed. 

Sec.  142.    Same — Preventing  defendant's  departure. — 

In  the  case  of  State  v.  Ramsey^  the  deceased  took  hold  of  the 
bridle-rein  of  a  horse,  on  which  the  prisoner  was  mounted  (who 
was  about  to  go  home  from  the  place  where  they  were),  and 
held  it  forcibly  from  ten  to  forty-five  minutes  in  spite  of  the 
efforts  of  the  prisoner  to  loosen  the  rein ;  and  the  prisoner,  at 
the  end  of  that  time,  struck  the  deceased  with  a  gallon  jug  of 
molasses,  which  he  casually  held  in  his  hands,  several  violent 
blows,  the  first  of  which  knocked  the  deceased  down;  on 
death  ensuing  from  these  blows,  it  was  held  to  be  manslaugh- 
ter and  not  murder. 

Sec.  143.  Same  —  By  the  killing  of  another.  —  The  sud- 
den killing  of  defendant's  friend,  causing  such  rage  and 
resentment  as  to  make  the  mind  incapable  of  cool  reflection, 
is  a  provocation  sufficient  to  reduce  the  killing  of  the  slayer 
by  the  defendant  from  murder  to  manslaughter.^ 

Thus  it  has  been  said  in  Moore  v.  State ^  that  "it  is  a 
question  of  fact  in  this  case  to  be  ascertained  by  the  jury,  as 
to  the  existence  or  non-existence  of  such  adequate  cause  as 
would  reduce  the  killing  from  murder  to  manslaughter.  If 
defendants,  seeing  their  friend  sbot  down,  were  so  aroused 
by  sudden  rage  and  resentment  as  that  their  minds  were 
incapable  of  cool  reflection,  and,  acting  under  the  immediate 
influence  of  such  sudden  passion,  they  shot  and  killed  the 
deceased,  their  offence  would  have  been  manslaughter,  and 
not  murder." 

Sec.  144.    Same  —  By  adultery  with  the  slayer's  wife. — 

The  detection  of  a  person  in  adultery  with  the  slayer's  wife 
is  sufficient  provocation  to  reduce  the  killing  of  such  person, 
or  of  the  wife,  from  murder  to  manslaughter ;  but  to  consti- 


1  5  Jones  (N.  C.)  L.  105  (1857).  pare     State    r.    Gut,    13    Minn.    341 

2  Moore  v.  State,  2()  Tex.  App.  322     (1868). 

(1889);  S.c.  9  S.  W.  Kcp.  010.     Com-  ■'  2(i  Tex.  App.  322  (1889)  ;  s.c.  9 

S.  W.  Kep.  610. 


SEC.  146.] 


MANSLAUGHTER. 


155 


tute  the  mitigation,  tlie  detection  must  have  been  in  the  very 
act,  and  the  killing  immediately  upon  the  detection.^  • 

Sec.  145.  Same  —  By  criiniual  intimacy  with  a  female 
relative.  —  The  fact  that  the  deceased  was  in  criminal  intimacy 
with  defendant's  sister  might  be  a  sufficient  provocation  to 
reduce  the  killing  to  manslaughter.'-^  It  is  thought  tliat  the 
same  is  true  with  regard  to  any  other  female  relative,  or  a 
female  in  the  defendant's  charge  and  control,  such  as  a  female 
ward. 

In  the  case  of  Lynch  v.  Commonwealth^  L.,  suspecting  his 
sister  was  in  the  act  of  adultery,  took  his  knife  from  his 
pocket,  opened  it,  and  forced  in  her  chamber  door.  He 
found  her  rising  from  her  bed,  undressed,  and  a  man  in  bed. 
He  stabbed  the  man  three  times  with  his  knife,  causing  his 
death.  The  court  held  that  the  provocation  was  not  suffi- 
cient to  reduce  the  killing  to  voluntary  manslaughter. 

Sec.  146.  Mutual  combat.  —  Where  two  persons,  upon  a 
sudden  quarrel,  and  in  hot  blood,  enter  into  a  fight  mutually 
and  upon  equal  terms,  whether  with  or  without  weapons,  and 
one  is  killed,  the  homicide  is  manslaughter,*  unless  tlie  com- 


1  See  Teople  v.  HurtaJo,  63  Cal. 
288  (1883)  ;  State  v.  Pratt.  1  Houst. 
Cr.  Cas.  (Del.)  249  (18(57)  ;  s.c.  Law. 
Iiisan.  327  ;  Turner  r.  State,  70  Ga. 
767  (1883)  ;  Biggs  r.  State,  29  Ga.  723 
(1860);  Sawyer  v.  State,  35  Ind.  80 
(1871)  ;  s.c.  Law.  Insan.790;  Mahert-. 
People,  10  Midi.  212  (1862)  ;  s.c.  81 
Am.  Dec.  781 ;  People  i:  Horton,  4 
Mich.  69  (1856);  State  v.  Holme,  54 
Mo.  153  (1873);  State  v.  France,  76 
Mo.  681  (1882);  SlmfHin  v.  People, 
62  N.  Y.  229  (1875)  ;  State  v.  Harman, 
78  N.  C.  515  (1878)  ;  State  v.  Avery, 
64  N.  C.  608  (1870)  ;  State  v.  Jo/,»,  8 
Ired.  (N.  C.)  L.  330  (1848);  s.c.  49 
Am.  Dec.  396  ;  Law.  Insan.  787  ;  State 
V.  Neville,  6  Jones  (N.  C)  L.  423 
(1859)  ;  State  v.  Samuel,  3  Jones 
(N.  C.)  L.  74  (1855)  ;  Commonwealth 
V.  Whitler,  2  Brewst.  (Pa.)  388  (1868); 
Reed  i:  State,  9  Tex.  App.  317  (1881); 
Pearson's  Case,  2  Lew.  C.  C.  216 
(1835);  Reg.  v.  Kelh/,  2  Car.  &  K. 
814  (1848);  s.c.  61  Eng.  C.  L.  813; 


Maddy's  Case,  1  Ventr.  158  (1672)  ; 
1  Whart.  Cr.  L.  (9th  ed.)  §  459. 

■^  Commonwealth  v.  Lynch.  Pittsb. 
(Pa.)  L.  J.  412.  Compare  State  r. 
Hockett,  70  Iowa,  442  (1886);  s.c.  9 
Cr.  L.  Mag.  208 ;  30  N.  W.  Kep.  742. 

3  77  Pa.  St.  205  (1874)  ;  s.c.  1  Am. 
Cr.  Rep.  283;  Law.  Insan.  146. 

^  Cates  V.  State,  50  Ala.  166  (1873); 
People  I'.  Sanchez,  24  Cal.  17  (1864) ; 
State  V.  Costen,  1  Houst.  Cr.  Cas. 
(Del.)  340  (1871)  ;  State  v.  O'Neal, 
1  Houst.  Cr.  Cas.  (Del.)  58  (1858)  ; 
State  V.  Davis,  1  Houst.  Cr.  Cas. 
(Del.)  13  (1857);  Stiles  v.  State,  57 
Ga.  183  (1876)  ;  Tate  v.  State,  46  Ga. 
148  (1872) ;  Irby  v.  State,  32  Ga.  496 
(1861)  ;  Gann  v.  State,  30  Ga.  67 
(I860) ;  Hinch  v.  State,  25  Ga.  699 
(1858)  ;  Stokes  v.  State,  18  Ga.  17 
(1855)  ;  State  v.  Partlow,  90  Mo.  608 
(1886);  s.c.  4  S.  W.  Rep.  14;  State 
V.  Massage,  65  N.  C.  480  (1871); 
State  r.  Roberts,  1  Hawks.  (N.  C.) 
L.   349    (1821);     State   v.   Floyd,    6 


156  HOMICIDE.  [chap.  VI. 

bat  was  sought  by  one  of  the  parties  for  the  purpose  of  killing 
the  other.^  If  a  mutual  intent  to  fight  exists,  there  is  a 
mutual  combat,  and  reduces  the  homicide  to  manslaughter, 
although  the  first  blow  kills  one  of  the  parties.^  Where  a 
combat  is  renewed  after  it  has  ceased  for  a  time,  and  killing 
ensues,  the  question  to  be  decided  is,  not  whether  the  defend- 
ant remained  in  a  state  of  anger,  but  whether  there  had  been 
sufficient  time  to  cool.^  But  if  one  provokes  a  combat,  and 
in  the  affray  has  to  kill  his  adversary  in  order  to  save  his 
own  life,  the  killing  is  not  murder,  but  manslaughter  only,  if 
the  intent  with  which  the  combat  was  provoked  is  not  a 
felonious  one.^ 

In  State  v.  O'Neal  ^  one  of  the  combatants  in  a  fisfht  was 

*■ 
killed  by  a  knife  after  having  used  a  billet  heavily  loaded 

at  one  end,  and  the  court  held  that  this  constituted  such  a 

provocation  as  would  reduce  the  crime  to  manslaughter. 

Sec.  147.  Same  —  Equal  terms.  —  In  the  case  of  Ivhj  v. 
State,^  on  the  trial  of  an  infant  fourteen  years  of  age,  for 
murder,  it  appeared  that  his  father  and  the  deceased  were 
engaged  in  a  common  fist  fight,  no  weapons  being  used  or 
threatened  on  either  side,  and  while  so  engfasred  a  brother-in- 
law  of  the  prisoner  actually  having  hold  of  his  father,  trying 
to  separate  them,  the  bystanders  not  otherwise  interfering  or 
attempting  to  do  so,  the  prisoner  ran  up  and  shot  down  his 
father's  antagonist,  without  warning  and  without  the  slight- 
est necessity  for  so  doing.  These  facts  were  held  amply 
sufficient  to  justify  a  verdict  of  "guilty  of  voluntary  man- 
slaughter." 

In  case  of  mutual  combat,  to  reduce  the  offence  of  taking 
life  from  murder  to  manslaughter,  it  must  appear  that  the 
contest  was  waged  upon  equal  terms,  and  no  undue  advan- 

Jones  (N.  C.)  L.  392  (1859)  ;  Cope-  State,   24   Tex.    App.   47    (1888)  ;    1 

land  V.  State,  7  Hiiiiipli.  (Tenn.)  479  Hale  P.  C.  4o3 ;  1  Hawks  P.  C,  c.  31, 

(184ti)  ;    Spearman  v.  State,  23  Tex.  §  29  ;  1  Whart.  Cr.  L.  (9tli  ed.)  482. 
App.  224  (1887) ;   State  v.  McDonnell,  "  Tate  v.  State,  40  Ga.  148  (1872). 

32  Vt.   491   (1860);  United  States  v.  3  People  v.  Sullivan,  7   N.  Y.  396 

Minfco,  2  Curt.  C.  C.  1   (1854)  ;  Desty  (1852). 

Cr.  L.  §  128  1);  Eost.  295;  1  Kuss.  on  ^  State    v.   Partlow,    90    Mo.    608 

Cr.  (5tli  Eng.  ed.)  811.  (1880)  ;  s.c.  4  S.  W.  Kep.  14. 

1  Tate  V.  State,  46  Ga.  148  (1872);  &  1  Houst.  Cr.Cas.  (Del.)  58(1858). 

State  r.  Underwood,  57  Mo.  46  (1874);  c  32  Qa.  49G  (1861). 

B.C.  1   Am.  Cr.  Kep.  251 ;   Melton   v. 


SEC.  149.] 


MANSLAUGHTER. 


157 


tage  was  taken. ^  Thus  where  a  fight  sprang  up  between  A 
and  B  on  one  side,  and  C  on  the  other,  and  C  was  killed,  it 
was  held,  in  the  absence  of  any  evidence  of  premeditation, 
that  the  act  of  killing  constituted  the  crime  of  manslaughter, 
and  that  it  did  not  matter  whether  A  or  B  struck  the  blow.^ 

Sec.  148.    Same  —  Previous    malice  not  presumed. —  If 

a  person,  upon  meeting  his  adversary  unexpectedly,  who  had 
intercepted  him  upon  his  lawful  road  and  in  his  lawful  pur- 
suit, accepts  the  fight  when  he  might  have  avoided  it  by 
passing  on,  the  provocation  being  sudden  and  unexpected, 
the  law  will  not  presume  the  killing  to  have  been  upon  the 
ancient  grudge,  but  upon  the  insult  given  by  stopping  him 
on  the  wa}|(  and  it  will  be  manslaughter.-^ 

Sec.  149.  Trespass.  —  A  mere  civil  trespass  on  the  land 
or  property  of  another,  not  his  dwelling-house,  is  never  suffi- 
cient to  reduce  the  intentional  killing  of  the  trespasser,  with 
a  deadly  weapon,  from  murder  to  manslaughter.'*     But  where 


1  People  V.  Sanclicz,  24  Cal.  17 
(1864). 

2  State  V.  Davis,  1  Houst.  Cr.  Cas. 
(Del.)  13  (1857). 

3  Copelaiul  r.  State,  7  Humph. 
(Tenn.)  479  (1840). 

*  Simpson  r.  State,  59  Ala.  1  (1877); 
Noles  V.  State,  2G  Ala.  31  (1855) ; 
Harrison  v.  State  24  Ala.  67  (1854)  ; 
Carrol  v.  State,  23  Ala.  28  (1853); 
Oliver  v.  State,  17  Ala.  587  (1850)  ; 
State  I'.  Woodward,  1  Houst.  Cr.  Cas. 
(Del.)  455  (1874)  ;  State  v.  Buchan- 
nan,  1  Houst.  Cr.  Cas.  (Del.)  79 
(1859);  Hayes  v.  State,  58  Ga.  35 
(1877)  ;  Keener  v.  State,  18  Ga.  194 
(1855)  ;  Monroe  r.  State,  5  Ga.  95 
(1848)  ;  Davison  r.  People,  90  111. 
221  (1878)  ;  State  v.  Kennedy,  20 
Iowa,  569  (1866)  ;  State  v.  Vance,  17 
Iowa,  1.38  (1864)  ;  Commonwealth  v. 
Drew,  4  Mass.  391  (1808)  ;  People  r. 
Horton,  4  Mich.  67  (1856)  ;  State 
V.  Hoyt,  13  Minn.  1.32  (1868);  State 
r.Shippey,  10  Minn.  223  (1865)  ;  Lam- 
beth V.  State,  23  Miss.  .322  (1852)  ; 
McDaniel  v.  State,  16  Miss.  (8  Smed. 
&  M.)  401  (1847);  People  r.  Cole, 
4  Park.  Cr.  Cas.  (N.  Y.)  35  (1857) ; 


State  V.  Morgan,  3  Ired.  (N.  C.)  L. 
186  (1842)  ;  State  v.  Brandon,  8  Jones 
(N.  C.)  L.  463  (1862)  ;  State  v.  Mc- 
Donnell, 32  Vt.  491  (1860)  ;  Bex  v. 
Scully,  1  Car.  &  P.  319  (1824)  ;  s.c. 
12  Eng.  C.  L.  190;  Reg.  v.  Archer, 
1  F.  &  P.  351  (1857)  ;  Langstaffe's 
Case,  1  Lew.  C.  C.  162  (1827);  1 
Whart.  Cr.  L.  (9th  ed.)  §  462. 

Under  a  statute  (Minn.  Gen.  Stats. 
§  9)  providing  that  "whoever  un- 
necessarily kills  another  except  by 
accident  or  misfortune,  and  except  in 
cases  mentioned  in  subd.  2  of  §  5," 
&c.,  "  either  while  resisting  an  attempt 
by  such  other  person  to  commit  any 
felony,  or  to  do  any  other  unlawful 
act,  or  after  such  attempt  has  failed, 
sliall  be  guilty  of  manslaugliter  in 
the  second  degree,"  does  not  apply 
where  tiie  killing  is  by  inflicting  blows 
with  an  axe  on  the  bead  and  neck  of 
the  deceased,  and  the  accused  claims 
that  the  blows  were  given  in  resisting 
a  civil  trespass  on  his  lands  and  cattle, 
but  makes  no  pretence  tliat  the  weapon 
was  used  without  a  design  to  effect 
the  fatal  result  which  followed.  State 
V.  Hoyt,  13  Minn.  132  (1868). 


158 


HOMICIDE. 


[chap.  VI. 


the  killing  of  the  trespasser  was  caused  by  his  resistance  of 
efforts  to  eject  him,  and  was  unintentional  on  the  part  of  the 
slayer,  and  is  accomplished  by  means  not  generally  calculated 
to  produce  death,  the  homicide  is  only  manslaiighter ;  ^  and 
the  same  is  true  if  the  killing  is  in  the  heat  of  passion,  under 
such  circumstances.^ 

Sec.  150.  Homicide  in  resisting-  arrest.  —  If  a  person 
resisting  a  lawful  attempt  to  arrest  him  commits  a  homicide, 
it  will  be  murder ;  if  a  person  resisting  an  attempt  unlaw- 
fully to  arrest  him,  unnecessarily  takes  the  life  of  the  person 
so  making  the  attempt,  he  is  guilty  of  manslaughter,  and  not 
of  murder,  in  the  absence  of  proof  of  express  malice.^  And 
his  guilt  is  of  the  same  degree  if  he  commits  tlfe  homicide 
in  attempting  to  escape  from  such  unlawful  restraint.* 

Sec.  151.  Same  —  Attempted  arrest  by  officer  without 
warrant.  —  Where  an  officer,  knowing  of  the  issuing  of  a  war- 
rant but  not  having  it  in  his  possession,  made  an  arrest,  and 
being  asked  for  his  warrant,  said  he  had  one  but  refused  to 
show  it,  and  at  once  seized  his  man  and  jerked  him  towards 
the  door,  whereupon  the  man  drew  and  snapped  his  pistol, 


^  See  Commonwealth  v.  Drew,  4 
Mass.  391  (1808);  1  Hiile  V.  C.  473; 
1  Hawks.  P.  C,  c.  31,  §  42  ;  1  Wliart. 
Cr.  L.  (9tli  ed.)  462. 

2  See  Claxton  v.  State,  2  Humph. 
(Tenn.)  181  (1840). 

3  State  V.  Oliver,  2  Houst.  (Del.) 
585  (1855)  ;  Rafferty  v.  People,  72  111. 
37  (1874);  Bias  v.  State,  7  Blackf. 
(Ind.)  20  (1843)  ;  s.c.  39  Am.  Dec. 
448;  Comtnonwealth  r.  McLaugliliii, 
60  Mass.  (12  Gush.)  015  (1853)  ;  Com- 
monwealth V.  Carey,  60  Mass.  (12 
Gush.)  240  (1853);  Gommonwcaltli  r. 
Drew,  4  Mass.  391  (180S)  ;  IVople  r. 
Burt,  51  Mich.  199  (18S3)  ;  Drennan 
V.  People,  10  Mich.  109  (1802)  ;  Jones 
V.  State,  14  Mo.  409  (1851)  ;  Roberts  r. 
State,  14  Mo.  138  (1851)  ;  s.c.  55  Am. 
Dec.  97 ;  Drake  v.  State,  14  Neb.  535 
(1883);  s.c.  17  N.  W.  Rep.  117;  Po- 
teete  v.  State,  9  Raxt.  (Tt-nn.)  261 
(1878)  ;  s.c.  40  Am.  Rep.  90  ;  Peter  r. 
State,  23  Tex.  Ai)p.  684   (1887)  ;  s.c. 


5  S.  W.  Rep.  228;  Alford  v.  State,  8 
Tex.  App.  545  (1880)  ;  Goodman  v. 
State,  4  Tex.  App.  349  (1879)  ;  Tiner 
r.  State,  44  Tex.  128  (1875). 

*  Dias  V.  State,  7  Blackf.  (Ind.)  20 
(1843)  ;  s.c.  39  Am.  Dec.  448 ;  Com- 
monwealth V.  McLaughlin,  06  Mass. 
(12  Gush.)  615  (1853);  Common- 
wealth V.  Carey,  00  Mass.  (12  Gush.) 
240  (1853)  ;  Goodman  v.  State,  4  Tex. 
App.  349(1879). 

Breaking  and  entering  a  railroad 
ticket  office  in  the  daytime  with  an 
intent  to  steal  therefrom,  but  not  actu- 
ally stealing,  is,  under  Mass.  Rev. 
Stats.,  c.  126,  §  13,  only  a  misde- 
meanor ;  and  an  arrest  by  an  officer, 
witliout  a  warrant  for  such  an  offence 
previously  committed,  is  illegal ;  and 
killing  the  officer  by  the  person  so 
arrested  is  not  murder,  but  man- 
slaughter.    Commonwealth  v.  Carey, 

06  Mass.  (12  Gush.)  246  (1853). 


SEC.  153.]  MAXSLAUGHTER.  159 

the  court  held  that  if  death  had  ensued,  it  would  not  have 
been  murder.^ 

A  mittimus  issued  by  the  clerk  of  a  court  for  the  arrest  of 
one  who  has  been  released  from  custody,  upon  giving  a  bond 
with  surety  for  costs,  and  upon  which  bond  judgment  has 
been  had  and  execution  issued,  confers  upon  the  sheriff  no 
right  to  make  the  arrest,  and  if  the  sheriff  is  killed  in  attempt- 
ing the  arrest,  the  crime  is  not  murder.- 

Sec.  152.  Homicide  in  inakingr  arrest.  —  While  a  homi- 
cide committed  by  one  who  was  attempting  to  make  an  illegal 
arrest  of  the  person  slain  may  be  murder,  it  can  never  be  of  a 
less  degree  than  manslaughter,  even  though  committed  under 
reasonable  apprehension  of  death,  or  of  great  bodily  harm.^ 
Although  a  homicide  by  an  officer  is  justifiable  when  neces- 
sary to  prevent  the  escape  of  a  person  lawfully  under  arrest 
for  a  felony,  yet,  where  the  escape  might  be  prevented  by 
other  ineans,  the  killing  will  be  manslaughter.  Thus  a  kill- 
ing cannot  be  justified  where  the  officer  neglected  to  use 
j^roper  means  to  secure  the  prisoner,  and  so  prevent  an 
attempt  to  escape^ 

Sec.  153.  Homicide  while  committing^  an  unlaTrfnl  act 
less  than  felony.  —  A  voluntar}-  homicide,  without  malice, 
caused  or  brought  about  by  the  commission  by  the  slayer  of 
an  unlawful  act,  less  than  felon}-,  is  manslaughter.^  Thus, 
adultery  being  only  a  misdemeanor,  under  the  Texas  statute, 
one  Avho,  being  caught  by  a  husband  in   adultery  with  his 

^  Drennan  i\  People,  10  Mich.  1G9  tlie  latter  stopped  and  refused  to  go 

(18()2).  further,  and  tried  to  get  away,  where- 

-  Poteete  v.  State,  9  Baxt.  (Tenn.)  upon  tlie  policeman  struck  him  over 

261  (1878).     Tills  case  is  reported  in  the    head    with    a    si.\-shooter   pistol. 

40  American  Reports,  p.  90 ;  but  the  There  was  no  evidence  that  the  pris- 

editor,    in   his    superior   wisdom,   has  oner  was   assaulting   the    policeman ; 

omitted  this  point  and  all  others,  save  and  it  was  proved  that  other  persons 

tlie  trite  one  of  dying  declarations  of  were   within   call,  hut    that   their  aid 

a  witness.  was  not  sought  by  the  policeman.    Tlie 

^  See  Peter  v.  State,  23  Tex.  App.  court    held    tiiat,    under   the   circuiii- 

68-1  (1887)  ;  s.c.  5  S.  W.  Rep.  228.  stances,  the  policeman  was  not  justi- 

•*  Reneau  v.  State,  2    Lea  (Tenn.)  fied   in    striking   the    blow  ;    and    his 

720   (1879);    s.c.  31    Am.    Rep.  626;  conviction  for  an  aggravated  assault 

2  Am.  Cr.  Rep.  624.  was  affirmed. 

In  Skidraore  v.  State,  2  Tex.  App.  ^  See  State  v.  Shelledy,  8  Iowa,  477 

20  (1878),  a  policeman  was  conduct-  (1859)  ;  Reed  v.  State,   11  Tex.  App. 

ing  a  prisoner  to  the  calaboose,  when  509  (1882)  ;  s.c.  40  Am.  Rep.  795. 


IGO  HOMICIDE.  [chap.  VI. 

wife,  resists  an  attack  made  on  him  by  tlie  husband,  and  kills 
him  to  save  his  own  life,  is  guilty  of  manslaughter.^  In  Reed 
V.  State  2  the  court  say  that,  "  How  far  and  to  what  extent  he 
will  be  excused  or  excusable  in  law  must  depend  upon  the 
nature  and  character  of  the  act  he  was  committing,  and  which 
produced  the  necessity  that  he  must  defend  himself.  When 
his  own  original  act  was  in  violation  of  law,  then  the  law 
takes  that  fact  into  consideration  in  limiting  his  right  of 
defence  and  resistance  whilst  in  the  perpetration  of  such 
unlawful  act.  If  he  was  engaged  in  the  commission  of  a 
felony,  and  to  prevent  its  commission  the  party  seeing  it,  or 
about  to  be  injured  thereby,  makes  a  violent  assault  upon 
him,  calculated  to  produce  death,  or  serious  bodily  harm,  and 
in  resisting  such  attack  he  slays  his  assailant,  the  law  would 
impute  the  original  wrong  to  the  homicide,  and  make  it  mur- 
der. But  if  the  original  wrong  was  or  would  have  been  a 
misdemeanor,  then  the  homicide  growing  out  of  or  occasioned 
by  it,  though  in  self-defence  from  an  assault  made  upon  him, 
would  be  manslaughter  under  the  law."  The  reason  of  this 
rule  is  thought  to  be  that  a  man  cannot  avail  himself  of  a 
necessity  Avliich  he  knowingly  and  wilfully  l)rought  on  him- 
self ;3  that  is,  it  will  not  afford  him  justification  in  law.'* 

Sec.  154.    Killing  one  in  an  attempt  to  kill  another.  — 

Where  one  person  is  killed  in  an  attempt  to  kill  another,  the 
killing  of  whom  would  have  been  manslaughter,  the  law 
transfers  the  degree  of  guilt  and  makes  the  homicide  man- 
slaughter. Thus,  where  one,  in  a  mutual  combat  or  scufHe, 
by  accident  shoots  a  third  person,  the  offence  is  manslaughter.^ 
In  Commonwealth  v.  Flanigan  *^  the  accused,  in  a  quarrel 
at  an  election  pool,  shot  at  his  antagonist  with  a  pistol  l)ut 
missed  him,  and  in  the  scuffle  which  ensued,  another  barrel 
was  discharged,  which  killed  a  boy  standing  near  by.  The 
court  held  that  this  was  voluntary  manslaughter. 

1  Reed  v.  State,  11  Tex.  App.  500  *  IJced  v.  State,  11  Tex.  App.  509 
(1882);   s.c.  40  Am.  Rep.  705.  (1882)  ;  s.c.  40  Am.  Rep.  705,  707. 

2  11  Tex.  App.  509  (1882)  ;    s.c.  40  ^  Commonwealtli    r.     Flanigan,    8 
Am.  Rep.  795.  Pliila.    (Pa.)   4;30    (18(50)  ;    Clark   v. 

3  State    r.   Neeley,   20    Iowa,    108  Stato,  10  Tex.  App.  405  (1880). 
(1865)  ;  Adams  v.  People,  47  III.  37(5  «  8  I'hila.  (Pa.)  430  (1869). 
(1868)  ;    State   v.  Starr,  38   Mo.  270 

(1866). 


SEC.  156.]  MANSLAUGHTER.  161 

Sec.  155.    Homicide  in  preserving^  peace.  —  If  life  be  un 
necessarily  taken  by  a  third  person  interfering  between  two 
combatants  for  the  purpose  of  preserving  the  peace  in  pro- 
tecting one  against  the  other,  the  offence  is  manslaughter.^ 

It  is  not  justifiable  to  resort  to  firearms  in  defence  against 
an  attack  with  the  naked  fists ;  and  where  one  who  inter- 
feres in  behalf  of  a  person  so  attacked,  and  without  intent 
to  kill,  discharges  a  gun  by  which  the  assailant  is  killed,  he 
is  guilty  of  manslaughter.^ 

Sec.  156.   involuntary  manslaughter  — What  constitutes. 

—  Involuntary  manslaughter  is  the  unlawful  killing  of  a 
human  being  without  malice  either  expressed  or  implied,  and 
without  intent  to  kill  or  inflict  the  injury  causing  death, 
committed  accidentally  in  the  improper  or  negligent  perform- 
ance of  an  act  lawful  in  itself,^  or  in  the  commission  of 
some  unlawful  act,  not  felonious,  as  where  an  act  not  strictly 
unlawful  is  done  in  an  unlawful  manner  and  without  due 
caution;^  accidentally  killing  an  antagonist  by  a  chance 
blow,*  or  a  kick,*^  in  a  fist  fight ;  accidentally  killing  an  an- 
tagonist in  circumstances  where  the  use  of  the  weapon  in 
defence  was  not  justifiable,®  although  done  in  the  heat  of 
passion,  contrary  to  expectation,  and  with  an  instrument  not 
calculated  to  produce  death ; "  accidentally  killing  by  riding 

1  People  r.  Cole,  4  Park.  Cr.  Cas.  slaughter  in  tlie  fourth  degree  under 
(N.  Y.)  35  (1857).  the  Wisconsin  Revised  Statutes,  cliap- 

2  Brown  r.  State,  28  Ga.  199  (1859);  ter  133,  section  20,  tlie  involuntary 
Bruner  v.  State,  58  Ind.  159  (1877)  ,  killing  must  be  without  a  cruel  or  un- 
Slate  V.  Benham,  23  Iowa,  154  (1867)  ;  usual  weapon,  and  witliout  any  cruel 
B.C.  92  Am.  Dec.  417;  Chrystal  v.  or  unusual  means.  Keenan  v.  State, 
Commonwealth,    9    Bush    (Ky.)    669  8  Wis.  132  (1857). 

(1873)  ;    State   v.  McNab,   20   N.    H.  3  Lee  v.  State,  1  Coldw.  (Tenn.)  02 

160  (1849);    State  v.  Zellers,  7  N.  J.  (1860). 

L.  (2  Halst.)  220  (1824)  ;   People  v.  ^  Reg.  v.  Caton,  12  Cox  C.  C.  024 

Rector,  19  Wend.  (N.  Y.)  569  (1838)  ;  (1875). 

Lee   V.   State,    1    Coldw.    (Tenn.)    62  5  Wellar   r.    People,    .30    Mich.    10 

(1860)  ;  Keenan  v.  State,  8  AVis.  132  (1874)  ;  s.c.  1  Am.  Cr.  Rep.  276. 
(1857);    1   AYhart.   Cr.  L.    (9th   ed.)  o  state   v.  Benham,    23    Iowa,    154 

§  305;    Desty  Cr.  L.  §    128  c;   4  Bl.  (1867);  s.c.  92  Am.  Dec.  417. 
Comm.  192;  1  East  P.  C.  55 ;  Harris'  "Commonwealth   v.    McAfee,    108 

.  Cr.  L.  (3d  ed.)   170;  1  Hawk.  P.  C,  Mass.  4-58  (1871);  Bull  v.  Common- 

c.  12,  §  1;    Roscoe's    Cr.    Ev.    (10th  wealth,  14   Gratt.  (Va.)  013    (1857). 

ed.)  724;  1  Russ.  Cr.  (5th   Eng.   ed.)  See  McKinney  r.  State,  8  Tex.   App. 

822.  626  (1880)  ;  1  East  P.  C.  235. 
To    reduce    the   offence    to   man- 


162 


HOMICIDE. 


[chap.  VI. 


an  unruly  horse  into  a  crowd;  ^  accidentally  killing  by  raising 
a  heavy  article  over  a  crowded  street,  when  the  method  taken 
in  raising  was  not  sufficiently  guarded  and  due  notice  not 
given ;  ^  accidentally  killing  a  person  in  lawful  sports  not 
in  themselves  dangerous ;  ^  accidentally  killing  a  participant 
in  the  pursuance  of  an  unlawful  sport,^  because  in  such  a 
case  the  intention  of  the  parties,  in  itself,  is  not  innocent, 
each  participant  being  careless  of  what  hurt  may  be  given  to 
his  fellow ;  ^  accidentally  killing  a  person  not  seen,  by  throw- 
ing a  stone  or  firing  a  gun  into  the  street ;  '^  accidentally  kill- 
ing by  throwing  stones  or  other  missiles  from  the  house-top 
into  the  street ; ''  accidental  killing  in  the  unlawful  and 
negligent  use  of  firearms  without  intent  to  injure  ;  ^  acciden- 
tal killing  in  shooting  at  poultry  with  intention  to  steal ;  ^ 
as  accidental  killing  in  the  perpetration  of  a  practical  joke, 
as  by  ducking,!*^  or  building  a  fire  over  a  drunken  man  to 
frighten  him,ii  or  giving  an  excessive  quantity  of  liquor,^^ 
shooting  a  gun  to  frighten,^'^  or  striking  a  horse  to  annoy  the 
rider,!*  qp  throwing  stones  into  a  coal-pit  in  sport,!^  or  up- 
setting a  cart,  and  the  like.^^ 

Sec.  157.  Same  —  How  cominitted  —  By  gross  careless- 
ness or  neg'lig-eiice.  —  Any  homicide  caused  by  the  gross  care- 

1  Lee  v.  State,   1    Coldw.    (Tenn.) 


62  (1800)  ;  1  East  P.  C  231 ;  1  Hale 
P.  C.  475  ;  Post.  26.3. 

2  Rex  V.  Rigniaidon,  1  Lew.  C.  C 
180  (1833). 

3  Rex  V.  Murphy,  6  Car.  &  P.  103 
(1833)  ;  s.c.  25  Eng.  C.  L.  343;  1  East 
P.  C.  270. 

4  Fost.  260. 

5  1  East  P.  C,  c.  5,  §  42,  p.  270. 

G  State  V.  Vance,  17  Iowa,  1.38 
(1864)  ;  Sparks  v.  Conimoiiwealtli,  3 
Bush  (Ky.)  HI  (18f)7);  People  i: 
Fuller,  2  Park.  Cr.  Cas.  (X.  Y.)  10 
(182.3);  1  East  P.  C  231. 

"  Rex  r.  Hull,  Kelynge,  40  (1064)  ; 
s.c.  1  Lead.  C.  C.  50;  1  East  P.  C. 
202;  Fost.  262.  However,  if  the 
building  is  situated  some  distance 
from  the  street,  and  proper  warning 
is  given  hefore  the  missile  is  thrown, 
it  will  be  manslaughter.  Rex  r.  Hull, 
Kelynge,  40(1604);  s.c.  1  Lead.C.C.42. 

estate    v.    Vines,   93   N.   C.    493 


(1885);    s.c.  53  Am.   Rep.  466;  Far- 
rant  i:  Barnes,  11  C.  B.  (N.  S.)  553 
(1862)  ;  s.c.  31  L.  J.  C.  P.  137  ;  1  East 
P.  C.  266  ;  Fost.  263. 
9  See  Fost.  258. 
n  1  East  V.  C.  236. 

11  Reg.  V.  Errington,  2  Lew.  C.  C. 
217  (1838). 

12  Reg.  V.  Packard,  1  Car.  &  M.  236, 
246  (1841)  ;  s.c.  41  Eng.  C.  L.  1.33, 
138;  Rex  v.  Martin,  3  Car.  &  P.  211 
(1827)  ;  s.c.  14  Eng.  C.  L.  531.  See 
ante,  §  2. 

i-»  State  V.  Roane,  2  Dev.  (X.  C.) 
L.  58  (1828). 

1+  Piummer's  Case,  Kelynge,  100 
(1702)  ;  s.c.  12  Mod.  627  ;  Fost.  258; 
3  (\)-Inst.  56;  Kelly,  117;  1  Hawk. 
P.  C,  c.  29,  §  11;  1  Hawk.  P.  C,  c. 
31,  §  41. 

1-  Fenton's  Case,  1  Lew.  C.  C.  179 
(18.30). 

I''  Rex  V.  Sullivan,  7  Car.  &  P.  641 
(1830)  ;  s.c.  32  Eng.  C.  L.  799. 


SEC.  157.]  MANSLAUGHTER.         '  163 

lessness  or  negligence  of  any  person  in  the  discharge  of  any 
act  or  duty,  is  manslaughter.  This  carelessness  or  negligence 
may  consist  either  in  the  improper  or  negligent  performance 
of  an  act,  or  in  the  omission  to  perform  a  prescribed  duty. 
But  it  has  been  said  that :  "  Omissions  are  not  the  basis  of 
penal  action,  unless  they  constitute  a  defect  in  the  discharge 
of  a  responsibility  with  which  the  defendant  is  especially 
invested.  There  is  no  such  thing,  in  fact,  as  an  omission 
that  can  be  treated  as  an  absolute  blank.  A  man  who  is 
apparently  inactive  is  actually  doing  something,  even  though 
that  somethings  is  the  cancellingf  of  somethincr  else  that  he 
ought  to  have  done.  Even  sleeping  is  an  affirmative  act, 
and  may  become  the  object  of  penal  prosecution  when  it 
operates  to  interrupt  an  act  on  the  part  of  the  defendant 
which  the  law  requires  of  him,  with  the  penalty  of  prosecu- 
tion for  his  disobedience.  Since,  therefore,  an  omission 
takes  its  character  from  the  prior  responsibility,  such  prior 
responsibility  must  be  scrutinized  when  we  undertake  to 
estimate  the  penal  character  of  an  omission  to  perform  it. 
As  a  general  rule  in  this  respect  we  may  say,  that  when  a 
responsibility  exclusively  imposed  on  the  defendant  is  such 
that  an  omission  in  its  performance  is,  in  the  usual  course  of 
events,  casually  followed  by  an  injury  to  another  person,  or 
to  the  state,  then  the  defendant  is  indictable  for  such  an 
omission  of  duty."'  ^ 

The  following  instances  of  gross  negligence  or  omission  of 
duty  have  been  held  to  support  on  an  indictment  for  man- 
slaughter, where  causing  death,  to  wit :  the  omission  of 
officers  of  a  vessel  to  keep  a  proper  lookout ;  ^  the  omission 
of  an  officer  in  charge  of  a  coal  mine  to  give  it  ventilation ;  ^ 
omission  by  a  railway  tender  to  give  the  proper  signal ;  *  omis- 
sion  by   a   switch-tender   to  properly  turn   a   switch ;  ^  and 


1  Reg.  V.  Lowe,  3  Car.  &  K.  123  Reg.  v.  Lowe,  4  Cox  C.  C.  449  (1850); 
(1850)  ;  s.c.  4  Cox  C.  C.  449;  Reg.  s.c.  3  Car.  &  K.  123;  Reg.  ;;.  Spence, 
V.  Haines,  2  Car.   &   K.  368    (1847);  1  Cox  C.  C.  352  (1846). 

s.c.  61  Eng.  C.  L.  367  ;  Reg.  v.  Hughes,  ^  Reg.  v.  Haines,  2  Car.  &  K.  368 

Dears.  &  B.  C.  C.  248   (1857);  s.c.  7  (1847)  ;  s.c.  61  Eng.  C.  L.  367. 

Cox  C.  C.  301 ;  Reg.  v.  Gray,  4  Fost.  *  Reg.  v.  Pargeter,  3  Cox  C.  C.  191 

&F.  1098  (1865).  (1848). 

2  See  Rex  v.  Green,  7  Car.  &  P.  ^  State  v.  O'Brien,  32  N.  J.  L. 
156  (1835);  s.c.  32  Eng.  C.  L.  549;  (o  Vr.)  169  (1867). 


164 


HOMICIDE. 


[chap.  VI. 


omission  by  a  street-car  conductor  to  keep  proper  lookout 
ahead  of  the  car.^ 

But  a  person  is  not  liable  to  be  charged  criminally  for  the 
omission  to  perform  an  act  unless  the  duty  and  responsibility 
is  upon  hira  exclusively.^  The  following  are  instances 
of  carelessness  or  negligence  in  tlie  commission  of  an  act 
sufficient  to  support  an  indictment  for  manslaughter,  when 
death  ensues  as  the  resdlt,  to  wit :  the  reckless  handling  or 
discharge  of  fireaims ;  ^  gross  carelessness  or  negligence  by 
officers  in  the  management  of  vessels,  or  in  the  commission 
of  acts  prescribed  by  the  navigation  laws  ;  *  the  rash  or  reck- 
less administering  of  medicine  or  remedies  or  physical  treat- 
ment causing  death,  either  by  a  physician  or  other  person;^ 
rudeness  of  sport  resulting  in  death ;  ^  the  use  of  poor  and  de- 
fective materials  by  a  builder,  resulting  in  the  fall  of  the  build- 
ing and  the  death  of  an  occupant;"  and  recklessness  in  driving 
or  controUinsr  a  hack  or  other  vehicle.  Thus  in  the  case  of 
Lee  V.  State,^  a  hack-tb-iver  was  held  to  have  been  properly 


1  Commonwealth  v.  Metropolitan 
R.  Co.,  107  Mass.  236  (1871). 

2  Reg.  V.  Barrett,  2  Car.  &  K.  343 
(1846)  ;  s.o.  61  Eng.  C.  L.  342;  Reg. 
V.  Gray,  4  Fost.  &  F.  1098  (1865). 

3  McPherson  v.  State,  22  Ga.  487 
(1857)  ;  Spnrks  v.  Commomuealth,  3 
Bush  (Ky.)  Ill  (1867);  s.c.  96  Am. 
Dec.  196;  Adams  v.  State,  65  Ind. 
565  (1879)  ;  State  v.  Hanlie,  47  Iowa, 
647  (1878);  s.c.  29  Am.  Rep.  496; 
2  Am.  Cr.  Rep.  326;  State  v.  Vance, 
17  Iowa,  138  (1864)  ;  State  v.  Emeri/, 
78  Mo.  77  (1883);  s.c.  47  Am.  Rep.  92; 
People  V.  Fuller,  2  Park.  Cr.  Cas. 
(N.  Y.)  16  (1823)  ;  Slate  v.  I7ne.s-,  93 
N.  C.  493  (1885)  ;  s.c.  53  Am.  Rep. 
466;  State  v.  Roane,  2  Dev.  (N.  C.) 
L.  58  (1828)  ;  Williams  v.  State, 
2  Ohio  Circuit  Court,  292;  Nel- 
son V.  State,  6  Baxt.  (Tenn.)  418 
(1873)  ;  Robertson  v.  State,  2  Lea 
(Tenn.)  2.39  (1879);  s.c.  31  Am.  Rep. 
(!02  ;  Farrant  v.  Barnes,  11  C  B.  N.  S. 
553  (1862);  s.c.  103  Kng.  C.  L.  553; 
31  L.  J.  C.  P.  137  ;  Reg.  v.  Jones,  12 
Cox  C.  C.  628  (1875)  ;  2  Gr.  Cr.  Rep. 
33;  Reg.  i'.  Skeet,  4  Fost.  &  F.  931 
(1866)  ;  lleg.  v.  Archer,  1  Fust.  &  F. 


351  (1857)  ;  Levy  v.  Langridge,  4 
Mees.  &  W.  337  (1838)  ;  s.c.  7  L.  J. 
Ex.  387;  Reg.  v.  Martin,  L.  R.  8  Q. 

B.  Div.  54  (1881);  Burton's  Case, 
1  Str.  481  (1722)  ;  Whart.  Horn.  (2d 
ed.)  §  88  et  seq.;  Desty  Cr.  L.  §  1, 
128  c;  1  East  P.  C.  266;  Fost.  256, 
263;  1  Hale  P.  C.  475. 

*  People  V.  Sheriff,  1  Park.  Cr.  Cas. 
(N.  Y.)  659  (1852)  ;  United  States  v. 
Taylor,  5  McL.  C.  C.  242  (1851); 
United  States  v.  Warner,  4  McL.  C.  C. 
464  (1848);  United  States  v.  Keller, 
19  Fed.  Rep.  633  (1884). 

^  Commonwealth  v.  Thompson,  6 
Mass.  1.34  (1809)  ;  Rice  v.  State,  8 
Mo.  561  (1844) ;  State  v.  Center,  35 
Vt.  .378  (1862). 

^  Pennsylvania  r.  Lewis,  Addis. 
(Pa.)  279  (1796);  Rex  v.  Murphy, 
6  Car.  &  P.  103  (1833)  ;  s.c.  25  Eng. 

C.  L.  343;  Wliart.  Horn.  (2d  ed.) 
§  162  ;  Desty  Cr.  L.  §  128  c ;  1  East 
P.  C.  270. 

"  People  r.  Buddensieck,  103  N.  Y. 
287  (1886);  s.c.  57  Am.  Rep.  766; 
s.c.  9  N.  E.  Rep.  44. 

«  1  Coldw.  (Tenn.)  62  (1860). 


SEC.  158.]  MANSLAUGHTER.  165 

convicted  of  involuntary  manslaughter  in  running  over  arid 
killing  a  little  child,  the  evidence  showing  that  the  prisoner 
"  deliberately  saw  the  danger  in  which  the  child  was  placed, 
and  yet  drove  on  at  a  moderate  pace." 

In  the  recent  case  of  White  v.  State,^  upon  the  trial  of  an 
indictment  for  murder  caused  by  suddenly  applying  the  brake 
to  a  hand-car  on  which  deceased,  defendant,  and  others  were 
riding,  whereby  the  car  was  stop[)ed,  and  deceased  killed,  an 
instruction  that,  if  defendant  did  not  know  the  result  of 
stopping  the  car  suddenly,  although  he  may  have  stepped  on 
the  brake  in  jumping  off  the  car,  he  would  not  be  guilty,  is 
erroneous,  as,  if  he  knew  that  stepping  on  the  brake  would 
stop  the  car  suddenly,  and  did  so  intentionally,  he  might 
have  therefore  been  guilty  of  gross  carelessness,  which, 
causing  death,  would  be  at  least  manslaughter. 

Sec.  158.  Same  —  Negligent  use  of  firearms.  —  At  com- 
mon law  it  is  manslaughter  if  one  discharge^  a  gun  in  the 
highway  in  the  dark,  and  kill  one  whom  he  did  not  see ;  ^ 
and  where  one  by  the  careless  use  of  a  2)istol  in  sport  kills 
another  by  accident,  it  is  manslaughter,  although  the  victim 
told  him  to  shoot.^ 

When  a  person  learning  that  some  boys  were  stealing 
melons  belonging  to  him,  rushed  out  to  his  melon-patch,  and 
fired  a  gun,  killing  one  of  the  depredators,  the  court  held 
that  if  the  killing  was  the  result  of  pure  accident,  and  there 
was  no  purjiose  to  injure  or  aim  in  the  direction  of  any  one, 
it  was  excusable ;  but  if  the  gun  was  fired  recklessly  or 
heedlessly,  the  act  would  be,  at  least,  manslaughter,  although 
the  gun  was  pointed  in  the  direction  of  the  deceased,  by 
accident,  with  no  purpose  to  injure.^ 

1  84  Ala.  421    (1887)  ;    s.c.    4    So.  lie  threatened  to  shoot  any  one  who 

Rep.  598.  interfered  with  him.     In  the  struggle 

■■^  People  V.  Fuller,  2  Park.  Cr.  Cas.  for  the  pistol,  and  while  it  was  in  B's 

(N.  Y.)  16  (182o).  hands,  it  was  accidentally  discharged, 

3  State    V.    Vines,   93    (N.   C.)  493  and   C  was  killed.     B   was  guilty  of 

(1885);  s.c.  53  Am.  Rep.  400.  involuntary    manslaughter;     and    as 

On  the  trial  of  A,  indicted  jointly  there  could  be  no  aider  and  abettor  in 

withBforthemurderofC,  it  appeared  such   a  case,  that   A  was  not   guilty, 

that  A  was  called  upon  by  B  to  assist  Adams  r.  State,  65  Ind.  566  (1879). 
him  and  others  in  taking  from  C  a  •*  State    v.    Vance,    17    Iowa,    138 

pistol   exhibited  by  him,  with  which  (18G4). 


166  HOMICIDE.  [chap.  VI. 

In  the  case  of  State  v.  Hardie  ^  a  revolver  was  found  in  the 
road  with  one  load  in  it.  Six  months  thereafter  repeated 
attempts  failed  to  discharge  it  or  remove  the  load.  Four 
years  thereafter  the  defendant  endeavoring  to  frighten  a 
woman  with  the  revolver  accidentally  discharged  it  and  killed 
her,  and  he  was  rightly  convicted  of  manslaughter. 

In  Williamson  v.  State,^  where  the  evidence  showed  that 
the  person  killed  came  to  his  death  by  means  of  a  shot  dis- 
charged from  a  pistol,  intentionally,  but  without  malice, 
pointed  or  aimed  by  the  defendant  at  or  towards  the  deceased, 
he  may  properly  be  convicted  of  manslaughter,  the  slayer  at 
the  time  having  been  in  the  commission  of  an  unlawful  act, 
the  statute  ^  not  being  intended  to  cover  a  case  of  this  kind, 
but  one  where  the  aiming  or  injury  does  not  produce  death. 

It  is  thought,  however,  that  the  mere  negligent  handling  of 
firearms  is  not  of  itself  sufficient.  Unless  there  are  circum- 
stances to  render  it  an  assault,  one's  playful  and  negligent 
handling,  of  a  pistol  which  he  believes  to  be  empty,  with  no 
intent  to  harm,  will  not  make  the  consequent  killing  volun- 
tary manslaughter.^  Thus  in  a  case  where  the  defendant, 
after  amusing  himself  with  a  small  pistol  shooting  "•  Christ- 
mas guns,"  loaded  it  with  only  a  paper  wad,  approached  a 
friend,  asking  her  to  kiss  him,  and,  upon  her  refusal,  said, 
"■  If  you  don't  kiss  me,  I  will  shoot  you,"  put  both  arms 
around  her,  discharged  the  pistol  below  her  shoulder,  and  on 
her  falling  mortally  wounded,  exclaimed,  "  For  God's  sake, 
forgive  me,  Milley ;  I  didn't  think  it  would  hurt  you."  The 
court  held  that  the  facts  did  not  warrant  a  conviction  of  vol- 
untary manslaughter.^ 

Sec.  159.  Same  —  Misconduct  and  neg-lig-ence  in  steam- 
boat navig-ation.  —  On  the  trial  of  an  indictment  for  man- 
slaughter under  the  federal  statute  *^  which  provides  that  any 
act  of  "  misconduct,  negligence,  or  inattention  "  on  the  part 
of  persons  employed  in  steamboat  navigation,  producing  death 

M7  Iowa,  (347  (1878);  s.c.  29  Am.  2^.0  (1879);  s.c.  .31  Am.  Rep.  602; 
Rep.  496 ;  2  Am.  Cr.  Kep.  82().  3  Am.  Cr.  Kcp.  207. 

2  2  Ohio  Circuit  Court,  2i)2.  '"'  Nelson  i-.  State,  6  Baxt.  (Tenn.) 

8  Ohio  Rev.  Stat.  §  6822.  418  (1873). 

■*  Robertson  v.  State,  2  Lea  (Tenn.)  «  §  12  of  Act  of  Congress,  July  7, 

1838. 


SEC.  161.]  MANSLAUGHTER.  167 

as  a  result,  shall  be  deemed  manslaughter,  if  it  appear  that 
the  steamboat  of  which  the  defendants  had  charge  came  into 
collision  with  another  vessel,  whereb}^  life  was  lost  without 
fault  on  tlie  part  of  the  defendants,  they  shall  be  acquitted.^ 
But  where  the  officers  of  a  steamboat  increase  the  fires  in 
racing  with  another  boat,  to  such  a  degree  as  to  burn  the  boat, 
so  that  death  ensued,  they  will  be  guilty  of  manslaughter.^ 

Sec.  160.  Same  —  By  assault.  —  Where,  in  the  commis- 
sion of  an  unlawful  assault  less  than  felony,  an  injury  is 
unintentionally  inflicted,  and  it  results  in  death,  the  person 
inflicting  it  is  guilty  of  involuntary  manslaughter.^  Thus 
where  one  who,  thinking  that  he  has  been  insulted,  brutally 
pushes  or  strikes  the  offender,  who  falls,  striking  his  head 
against  the  pavement,  and  death  results  therefrom,  the  assault- 
ing party  is  guilty  of  involuntary  manslaughter.'* 

In  State  v.  Downs,^  on  the  trial  of  an  indictment  for  man- 
slaughter, the  evidence  showed  that  defendant's  son,  eleven 
years  old,  struck  deceased  in  the  face,  when  the  latter  stepped 
back  and  threw  up  his  liands,  though  not  within  reach  of  the 
boy,  and  at  that  moment  defendant,  without  any  warning, 
ste];)ped  up  behind  deceased  and  struck  him  on  the  head  with 
a  bottle  containing  liquor,  and  weighing  from  three  to  five 
pounds,  inflicting  injuries  from  which  he  soon  died,  an 
instruction  on  manslaughter  in  the  first  degree  under  the 
statute  ^  defining  it  to  be  ''  the  killing  of  a  human  being, 
without  the  design  to  effect  death  by  the  act,  procurement, 
or  culpable  negligence  of  another,  while  such  otlier  is  engaged 
in  the  perpetration  or  attempt  to  perpetrate  any  crime  or 
misdemeanor  not  amounting  to  a  felony,  in  case  where  such 
killing  would  be  murder  at  common  law,"  was  held  to  be 
erroneous. 

Sec.  161.  Same  —  By  attempting  abortion.  —  Unlawfully 
attempting  to  produce  an  abortion  upon  a  female  when  she  is 

1  United  States  v.  Warner,  4  McL.  s.c.  11  N.  E.  Rep.  447  ;  State  v. 
C.  C.  463  (1848).  Downs,  91  Mo.  19  (1886). 

2  People  V.  Sheriff,  1  Park.  Cr.  Cas.  *  Brown  v.  State,  110  Ind.  486 
(N.  Y.)  659  (1852).  (1886)  ;  s.c.  11  N.  E.  Rep.  447. 

3  State  V.  Johnson,  102  Ind.  247  5  91  Mo.  19  (1886)  ;  s.c.  3  S.  W. 
(1885)  ;  s.c.  1   N.  E.   Rep.   377.     See  Rep.  219. 

Brown  v.  State,  110  Ind.  486  (1886)  ;  «  Mo.  Rev.  Stat.  1879,  §  1238. 


168 


HOMICIDE. 


[chap.  VI. 


quick  with  child,  and  thereby  causing  her  death,  is  man- 
slaugbter.i  And  this  is  true  even  though  the  attempt  to 
produce  the  abortion  is  made  by  the  use  of  drugs  which  the 
defendant  procured  and  gave  to  his  wife,  with  intent  that  she 
should  take  tliem  in  order  to  procure  the  abortion ;  and  she 
took  them  in  his  absence  and  died  from  their  effects.^  But 
where  an  infant  is  born  alive  and  dies  by  reason  of  potions 
adminiitered  or  bruises  received  while  in  the  womb,  it  will  be 
murder  in  the  person  who  administered  the  one  or  gave  the 
other,  with  a  view  of  causing  a  miscarriage.^ 

The  offence  of  administering  a  drug  to  a  pregnant  woman 
with  intent  to  produce  miscarriage,  and  that  of  administering 
it  with  intent  to  kill  the  child,  are  distinct  offences.'*  If  one 
administer  a  drug  or  use  an  instrument  upon  a  pregnant  woman 
with  intent  to  destroy  the  child,  this  constitutes  a  felony,^  and 
if  the  deatli  of  the  mother  occur  by  reason  of  the  use  of  such 
drug  or  instrument  with  such  intent,  the  offence  will  be  mur- 
der.*^ It  was  laid  down  by  Lord  Hale '  nearly  two  hundred 
years  ago  that  "•  if  a  woman  be  with  child,  and  any  give  her 
a  potion  to  destroy  the  child  within  lier,  and  she  takes  it,  and 
it  works  so  strongly  that  it  kills  her,  this  is  murder  ;  for  it 
was  not  to  cure  her  of  a  disease,  but  unlawfully  to  destroy 
the  child  within  her ;  and  therefore,  he  that  gives  a  potion  to 


1  Yundtc.  People,  05  111.  372  (1872); 
Smith  V.  State,  :«  Me.  48  (1851)  ;  s.c. 
54  Am.  Dec.  007  ;  State  v.  Fitzporter, 
93  Mo.  390  (1887)  ;  s.c.  0  S.  W.  Kep. 
223;  People  v.  Clark,  7  N.  Y .  385 
(1852);  State  v.  Glass,  5  Greg.  73 
(1873)  ;  Commonwealth  v.  Railing, 
113  Pa.  St.  37  (1880)  ;  s.c.  4  Atl.  Rep, 
59;  Reg.  v.  Gaylor,  Dears.  &  B.  C.  C. 
288  (1857)  ;  s.c.  40  Eng.  L.  &  Eq.  550. 

Where  the  crime  charged  is  man- 
slaughter, committed  by  atte7ni)tiiig 
to  produce  abortion,  evidence  that  the 
deceased,  prior  to  the  commission  of 
the  crime,  made  an  attemj)t  upon 
herself  is  immaterial,  unless  such  at- 
tempt contributed  to  hor  death.  State 
V.  Glass,  5  Greg.  73  (1873). 

2  Reg.  1-.  Gaylor,  Dears.  &  R.  C.  C. 
288  (1857)  ;  s.c.  40  Kng.  L.  &  Eq.  550. 
See  ante,  §  26, 


3  State  V.  Moore,  25  Iowa,  131-137 
(1808)  ;  s.c.  95  Am,  Dec,  770  ;  Abrams 
V.  Foshee,  3  Iowa,  278,  279- (1856); 
Mitchell  V.  Commonwealth,  78  Ky. 
204  (1879) ;  s.c,  39  Am.  Rep,  227  ;  10 
Cent,  L,  J,  338;  ;iS'w/V/i  v.  Slate,  33  Me, 
54,  55  (1851)  ;  s,c,  54  Am,  Dec,  607  ; 
State  V.  Cooper,  22  N,  J,  L.  (2  Zab,) 
53-58  (1849);  s,c,  51  Am,  Dec.  248 ; 
Evans  v.  People,  49  N,  Y,  88  (1872) ; 
State  V.  Slasile,  82  N.  C.  053  (1880)  ; 
State  r.  Dickinson,  41  Wis.  309  (1877) ; 
2  Wliart.  Cr,  L.  §  1220  ;  4  Bl.  Comm, 
201.  * 

•*  Lohman  v.  People,  1  N.  Y,  379 
(1848;  ,  s.c,  49  Am.  Dec.  341, 

&  Smith  V.  State,  33  Me.  48  (1851) ; 
s.c,  54  Am,  Dec,  007, 

6  Smith  V.  State,  33  Me,  48  (1851), 
s,c,  54  Am.  Dec.  607.     See  ante,  §  5, 

"  1  Hale  P.  C,  429,  430. 


SEU.  163.]  MANSLAUGHTER.  1G9 

this  end  must  take  the  hazard,  and  if  it  kills  the  mother,  it  is 
murder."  ^ 

Sec.  162.  Same  —  By  threats  causing-  frig-lit.  —  Man- 
slaughter may  be  caused  by  an  act  of  the  person  killed,  com- 
mitted in  consequence  of  fear  caused  by  threats  or  menaces 
of  another ;  but  the  fear  must  be  well  g-rounded  and  reason- 
able. Thus,  in  the  recent  case  of  Hendrickson  v.  Common- 
wealth.- on  the  trial  of  an  indictment  for  murder,  it  appeared 
tliat  during-  a  light  at  night  between  the  defendant,  who  was 
crippled  and  lacked  the  use  of  one  arm,  and  his  wife,  the  wife 
knocked  the  defendant  down  with  a  shovel,  got  on  him  and 
choked  him ;  that  he  started  for  his  trousers,  saying  if  he  had 
a  knife  he  would  cut  her  throat.  The  wife  thereupon  ran  out 
of  the  house,  and  next  morning  was  found  in  the  snow  frozen 
to  death.  The  court  held  that  the  defendant  could  not  be 
convicted  of  manslaughter  merely  because  such  violence 
caused  the  wife  to  leave  the  house  for  fear  of  death  or  srreat 
bodily  harm  at  his  hands,  unless  such  fear  was  well  grounded 
or  reasonable,  and  the  wife's  death  by  freezing  was  the  nat- 
ural and  probable  consequence  of  her  so  leaving  the  house. 

Sec.  163.  Same  —  By  undue  correction  by  persons  in 
autliority.3  —  Wlien  death  results  from  violent,  unreason- 
able, or  immoderate  correction  or  punishment  administered 
by  parents,  masters,  and  others  in  like  authorit}^  to  those 
under  their  control,  the  killing  will  be  manslaughter  in  the 
absence  of  malice.*  Thus  in  the  case  of  State  v.  Field,^  which 
was   an  indictment  for  murder,  the    evidence  showed  that 

1  See  Montgomery  r.  State,  80  Iiul.  »  gee  ante,  §  27. 

388,  .312    (1881);    State  v.  Moore,  25  *  See  State  r.  Fields,  70  Iowa,  196 

Iowa,   128  (18G8) ;    s.c.    95  Am.  Dec.  (1886)  ;    s.c.    30   N.    W.    Rep.    480 ; 

776;  Cominonwectllh  V.Parker,  50  Mass.  Commonwealth  v.  Randall,  70  Mass. 

(9   Mete.)   263    (1845);    s.c.  43    Am.  (4  Gray)  36  (1855)  ;  United  States  y. 

Dec.  396;  People  v.  Sessions,  58  Mich.  Freeman,  4  Mason  C.  C.  505  (1827)  ; 

594,  596  (1886)  ;  s.c.  26  N.  W.  Rep.  United   States    v.    Knowles,   4    Sawy. 

291 ;  State  v.  Dickinson,  41  Wis.  209  C.  C.  517  (1864)  ;  Rex  v.  Ciieeseman, 

(1877).  Also  Commonwealth  r.  Keeper  7  Car.  &  P.  455  (1836);  s.c.  32  Eng. 

of    tlie    Prison,    2    Ashm.    (Pa.)    227  C.  L.  704;  Anon.   1   East  P.  C.  261; 

(1838)  ;    Ann    r.    State,    11    Humph.  Rej>-.    r.    Hopley,   2   Fost.    &   F.    202 

(Tenn.)  159  (1850);  Tinckler's  Case,  (1860). 

1  East  P.  C,  c.  5,  §  17,  p.  230  (1781)  ;  ■>  70    Iowa,    196     (1886)  ;    s.c.    30 

Fost.  261.  N.  \V.  Rep.  480. 

2  85  Ky.  281  (1887)  ;  s.c.  7  Am.  St. 
Rep.  596 ;  3  S.  W.  Rep.  166. 


170  HOMICIDE.  [chap.  VI. 

defendant,  a  man  of  peaceable  and  quiet  disposition,  stood  in 
relation  of  a  parent  to  the  deceased,  an  orphan  boy  about  ten 
years  old,  who  was  in  the  habit  of  running  away  from  home 
and  was  disobedient ;  that  a  method  of  punishment  adopted 
was  to  put  the  boy  in  a  sack  with  holes  in  it ;  that  on  a  certain 
day  the  defendant  tied  him  in  a  sack  and  deposited  him  near 
the  house,  and,  acquaintances  having  engaged  the  defendant 
in  drinking,  the  boy  was  permitted  to  remain  in  the  sack  for 
several  hours,  and  when  found  was  dead.  The  court  held 
that  sucli  evidence  M^ould  not  sustain  a  conviction  of  murder 
in  the  first  degree,  and,  the  defendant  consenting,  the  sentence 
should  be  reduced  to  the  maximum  punishment  authorized 
for  the  crime  of  manslaughter. 

Sec.  164.  Same  —  Upon  person  under  arrest. — Where 
an  officer  or  other  person,  in  arresting  another,  recklessly  and 
carelessly  shoots  him  without  necessity,  he  is  guilty  of  man- 
slaughter.i  And  it  has  been  held  that  where  an  officer  with- 
out warrant  arrested  a  man  who  was  guilty  of  no  offence, 
and,  in  preventing  an  escape,  struck  and  killed  him,  he  was 
guilty  of  involuntary  manslaughter.^ 

Sec.    165.    Same  —  By    obstructing    railroad    track.  — 

Where  a  person  places  an  obstruction  upon  a  railroad  track 
without  actual  intent  to  commit  injury  or  to  take  life,  and 
death  results,  he  is  guilty  of  manslaughter.  Thus,  where  a 
person  placing  an  obstruction  upon  a  railroad  track,  with  the 
intention  of  returning  to  a  station  and  informing  the  conduc- 
tor of  an  accommodation  train  thereof,  thereby  hoping  to  secure 
a  position  on  the  road  as  a  reward,  and,  contrary  to  his  expec- 
tation, an  express  train  comes  first,  and,  though  he  tries  to 
stop  it,  an  accident  ensues  and  persons  are  killed,  he  is  guilty 
of  manslaughter.^ 

1  York  V.  Commonwealth,  82  Ky.  ^  State  v.  Brown,  1  Iloust.  Cr.  Cas. 
360  (1884).                                                   (Del.)  63'J  (1878). 

2  O'Connor   v.    State,   64    Ga.    125 
(1879)  ;  s.c.  37  Am.  Rep.  58, 


CHAPTER   VII. 

DEFENCES   TO   HOMICIDE. 

Sec.  166,  Homicide  to  prevent  a  crime  —  Self-defence. 

Sec.  167.  Same  —  Illustrations. 

Sec.  168.  Same — Defence  by  another. 

Sec.  169.  Same —  Reasonable  belief  in  imminent  danger. 

Sec.  170.  Same  —  Grounds  for  belief  of  danger. 

Sec.  171.  Same — Words  or  threats. 

Sec.  172.  Same  —  Former  acts  or  attempts. 

Sec.  173.  Same — Conspiracy. 

Sec.  174.  Same  —  Gestures  and  menaces. 

Sec.  175.  Same  —  Possession  of  weapons. 

Sec.  176.  Same  —  Assault. 

Sec.  177.  Same  —  Assault  in  heat  of  passion. 

Sec.  178.  Same  —  Provoking  assault. 

Sec.  179.  Same  —  The  slayer  must  be  without  fault. 

Sec.  180.  Same  —  The  killing  must  appear  to  be  the  last  resort  for  safety. 

Sec.  181.  Same  —  Duty  to  retreat. 

Sec.  182.  Same  —  Right  to  pursue  assailant. 

Sec.  183.  Same  —  Defence  of  others. 

Sec.  184.  Same  —  Defence  of  property  —  Of  the  habitation. 

Sec.  185.  Same  —  Of  other  property. 

Sec.  186.  Same  —  Setting  spring  guns. 

Sec.  187.  Homicide  in  making  arrest. 

Sec.  188.  Homicide  in  resisting  rescue. 

Sec.  189.  Homicide  in  resisting  arrest. 

Sec.  190.  Killing  oflBcer  dispersing  public  meeting  —  The  Anarcliists'  Case. 

Sec.  191.  Homicide  because  reward  offered  for  death. 

Sec.  192.  Homicide  in  defence  of  a  woman's  chastity. 

Sec.  193.  Killing  one  guilty  of  adultery  with  slayer's  wife. 

Sec.  194.  Homicide  from  necessity. 

Sec.  195.  Same  —  The  Mignonette  Case; 

Sec.  196.  Homicide  from  compulsion. 

Sec.  197.  Existence  of  war. 

Sec.  198.  Homicide  by  accident  and  mistake. 

Sec.  199.  Homicide  while  insane. 

•Sec.  200.  Same  —  Uncontrollable  impulse. 

Sec.  201.  Same  —  Moral  insanity. 

171 


172  HOMICIDE.  .  [chap.  VII. 

Sec.  202.  Voluntary  intoxication  as  a  defence. 

Sec.  203.  Same  —  Irresistible  appetite. 

Sec.  204.  Same  —  Producing  temporary  insanity. 

Sec.  205.  Same  —  Shown  as  affecting  physical  capability. 

Sec.  206,  Same  —  Mental  affectation  must  be  permanent. 

Sec.  207.  Same  —  As  an  aggravation  of  offence  —  Illinois  doctrine. 

Sec.  208.  Same — Texas  doctrine. 

Sec.  209.  Same  —  When  considered. 

Sec.  210.  Same —  Affecting  intent  and  degrees  of  offence. 

Sec.  211.  Same — Intoxication  as  a  rebuttal  of  malice. 

Sec.  212.  Same  —  As  disproving  criminal  intent. 

Sec.  213.  Same  —  Insanity  resulting  from  intoxication. 

Sec.  214.  Same  —  Predis[)osition  to  insanity  from  intoxication. 

Sec.  215.  Same  —  Fixed  frenzy. 

Sec.  216.  Same  —  Delirium  tremens. 

Sec.  217.  Same  —  Involuntary  intoxication  as  an  excuse  for  crime. 

Sec.  218.  Somnambulism  as  a  defence. 

Sec.  166.    Homicide  to  prevent  a  crime  —  Self-defence. 

—  A  homicide  is  always  excusable  where  committed  in  actual 
or  necessary  defence  of  the  life  or  limb,  property  or  habita- 
tion of  the  slayer.^  This  right  is  one  founded  on  the  law  of 
nature,  and  is  not  superseded  by  the  laws  of  society.^  It  is 
a  right  based  on  necessity,'^  and  one  which  every  one  brings 
into  society  and  retains  in  society,  except  so  far  as  it  is  cur- 
tailed by  the  laws  of  society ;  *  but  the  necessity  for  the  exer- 
cise of  this  right  can  only  arise  where  one  manifestly  intends 
and  endeavors  by  violence  or  surprise  to  commit  a  known 
felony  on  the  person,  habitation,   or  property  of  another.^ 

1  See  McManus  v.  State,  36  Ala.  7,1.  J. Marsh. (Ky.)  478  (1832)  ;  United 
293  (1860)  ;  Monroe  v.  State,  5  Ga.  85  States  v.  Holmes,  1  Wall.  Jr.  C.  C.  1 
(1848) ;    Commonwealth   v.   Selfridge     (1842). 

(Mass.),  1  Horr.  &  T.  2  (1806)  ;  Com-  3  People  v.  Pool,  27  Cal.  572  (1865). 

monwealth    ;;.    Riley,    Thacli.    C.    C.  *  Gray    v.  Combs,    7  J.  J.   Marsii. 

(Mass.)  471  (1837);  Silvus  v.  State,  22  (Ky.)  478    (1832);    Horr.   &   T.   Self 

Ohio  St.  90  (1871)  ;  s.c.  1  Gr.  Cr.  Kep.  Def.  867. 

679;  Stewart  v.  State,  1  Ohio   St.  06  &  Carroll  ;•.  State,  23  Ala.  28  (1853)  ; 

ri852);  Pond  v.  People,  8  Midi.  150  Keener  r.  State,  18  Ga.   194  (1855); 

<1860)  ;  Weaver  v.  State,  24  Ohi(_f  St.  State  v.  Collins,  32  Iowa,  36  (1871) ; 

584   (1874);    Drake   r.   State,  5   Tex.  State  r.  Kennedy,  20  Iowa,  569  (1866); 

App.   649    (1879);    United    States    r.  State  ;■.  Thompson,  9  Iowa,  188  (1859) ; 

Outerbridge,  5  Sawy.  C.  C.  620  ri8G8).  Boiiannon  r.  Commonwealth,  8  Bush 

2  Long  V.  State,  52  Miss.  23  (187'i)  ;  (Ky.)  481  (1871)  ;  Voung  r.  Common- 
Isaacs  V.  State,  25  Tex.  174  (I860);  wealth,  0  Bush  (Ky.)  312  (1869); 
United  States  r.  Outerbridge,  T)  Sawy.  C'i>mmnnv'P(tlth  v.  Srlfridfje  (Mass.), 
C.  C.  020  (1868).    See  Gray  v.  Combs,  Ilorr.  &  T.  1  (1806)  ;' Commonwealth 


SEC.  166.] 


DEFENCES   TO   HOlVnCIDE. 


173 


The  right  of  self-defence  exists  against  any  present  unhiwful 
attack,^  such  as  an  assault  made  with  a  deadly  weapon,'^ 
where  such  assault  is  made  either  upon  the  person  or  habita- 
tion of  the  accused,^  or  upon  the  parent  or  child,  husband  or 
wife,  master  or  servant,  brother  or  sister,  of  the  accused.* 

In  order  to  justify  a  homicide  on  the  ground  that  it  was 
committed  in  self-defence,  it  must  appear  that  the  defendant, 
at  the  time  he  caused  the  death  of  the  deceased,  was  actinor 
under  a  re;isonable  belief  that  he  Avas  in  imminent  dano-er  of 
death  or  great  bodily  harm  from  the  deceased,  and  that  it  was 
necessary  for  him  to  strike  the  fatal  blow  or  to  perform  such 
other  act  causing  the  death  of  deceased,  in  order  to  avoid  the 
death  or  great  bodily  harm  which  was  apparently  imminent.* 


V.  Riley,  Thacli.  C.  C.  (Mass.)  471 
(1837)  :  Patten  v.  People,  18  Miuli. 
314  (1809);  Pond  v.  People,  8  Mich. 
150  (18«0)  ;  Stofter  v.  State,  15  Oliio 
St.  47  (1864);  Stewart  i-.  State,  1 
Ohio  St.  66  (1852)  ;  Drake  v.  State, 
5  Tex.App.  649(1870);  United  States 
V.  Outerbridge,  5  Sawy.  C.  C.  6-20 
(1868);  United  States  r.  Wiltberger, 
3  Wash.  C.  C.  515  (1819)  ;  Hinch- 
cliffe's  Case,  1  Lew.  C.  C.  161  (1823). 

1  Filkins  c.  People,  69  N.  Y.  101 
(1877). 

'  State  V.  Thompson,  71  Iowa,  503 
(1887)  ;  s.c.  32  N.  \V.  Pep.  476  ;  State 
V.  Kennedy,  7  Nev.  374  (1872). 

But  it  has  been  said,  in  Filkins  i-. 
People,  69  N.  Y.  101  (1877),  that  a 
blow  given  with  the  liandle  of  a  knife 
is  not  an  assault  with  a  knife  or  sharp 
instrument,  within  the  meaning  of  tlie 
statute,  any  more  tlian  would  an  at- 
tempt to  discharge  a  loaded  gun, the 
touchhole  of  wliich  was  plugged,  be 
an  offence  under  the  English  statute, 
making  it  criminal  to  attempt  to  dis- 
charge a  loaded  gmi  at  anotlier.  See 
Pex  V.  Harris,  5  Car.  &  P.  159  (1831). 

3  Roach  v.  People,  77  111.  25  (1875)  ; 
Pond  7.'.  People,  8  Mich.  150  (1860). 

•»  Oliver  V.  State,  17  Ala.  587  (1850)  ; 
Armistead  v.  State,  18  Ga.  704  (1855)  ; 
Waybright  r.  State,  56  Ind.  122 
(1877)  ;  Cheek  v.  State,  35  Ind.  492 
(1871)  ;  Pond  v.  People,  8  Mich.  150 


(1869)  ;  Staten  v.  State,  30  Miss. 
619  (1856);  Sharp  v.  State,  19  Ohio, 
387  (1850);  Connaughty  v.  State,  1 
Wis.  105  (1853). 

While  it  is  true  that  a  son  may 
repel  a  forcible  attack  on  his  parent, 
yet  if  tiie  parent  be  the  assailant,  he 
cannot  lawfully  aid  him.  Waddell  r. 
State,  1  Tex.  App.  720  (1877). 

^  Morrison  v.  State,  84  Ala.  405 
(1888);  s.c.  4  So.  Rep.  402  ;  Watson 
V.  State,  82  Ala.  10  (1886);  s.c.  2  So. 
Rep.  455;  Finch  r.  State,  81  Ala.  41 
(1886)  ;  s.c.  1  So.  Rep.  565;  Baker  r. 
State,  81  Ala.  38  (1886)  ;  s.c.  1  So. 
Rep.  127;  Jackson  v.  State,  81  Ala. 
33  (1886);  s.c.  1  So.  Rep.  33;  Dolan 
V.  Slate,  81  Ala.  11  (1886);  s.c.  1  So. 
Rep.  707;  Tesney  i-.  State,  77  Ala.  33 
(1884)  ;  Jackson  v.  State,  77  Ala.  18 
(1884);  Jones  v.  State,  76  Ala.  8 
(1884)  ;  HoUey  i:  State,  75  Ala. 
14  (1883) ;  De  Arman  v.  State,  71 
Ala.  351  (1882)  ;  Ingram  v.  State,  67 
Ala.  67  (1880);  Leonard  r.  State,  66 
Ala.  461  (1880) ;  Cross  i-.  State, 
63  Ala.  40  (1879)  ;  Myers  v.  State, 
02  Ala.  599  (1878)  ;  Rogers  v.  State, 
62  Ala.  170  (1878)  ;  Jiif}(jp  v.  State,  58 
Ala.  406  (1877)  ;  s.c.  29  Am.  Rep. 
757;  Eiland  v.  State,  52  Ala.  322 
(1875)  ;  Lewis  v.  State,  51  Ala.  1 
(1874);  Taylor  r.  State,  48  Ala.  157 
(1872);  Murphy  r.  State,  37  Ala. 
142   (1861)  ;  Dupree  v.  State,  33  Ala. 


174 


HOMICIDE. 


[chap.  VII. 


Sec.  167.  Same  —  Illustrations.  —  One  of  tlie  strongest 
cases  on  this  subject  is  that  of  State  v.  Craton.^  In  that  case 
the  prisoner  was  in  the  commission  of  a  great  wrong  against 
the  marital  rights  of  the  deceased,  in  wliich  he  persevered 
and  persisted,  notwithstanding  the  remonstrance  of  the 
deceased.  When  the  prisoner  struck  the  fatal  blow  he 
was  in  no  danger  of  an  attack,  and  was  evidently  influenced 
by  a  desire  to  drive  the  deceased  awa}^,  that  he  might  carry 
out  his  unauthorized  possession  of  deceased's  wife,  and  not  by 


1  6  Ired.  (X.  C.)  L.  104  (1845). 


380  (1859);  s.c.  73  Am.  Dec.  422; 
Noles  V.  State,  26  Ala.  31  (1855)  ;  s.c. 
02  Am.  Dee.  711;  Harrison  v.  State, 
24  Ala.  67  (1854)  ;  s.c.  60  Am,  Dec. 
450;  Carroll  v.  State,  23  Ala.  28 
(1853);  s.c.  58  Am.  Dec.  282;  Holmes 
V.  State,  23  Ala.  17  (1853)  ;  Pritchett 
V.  State,  22  Ala.  39  (1853)  ;  s.c.  58 
Am.  Dec.  250;  Johnson  i-.  State,  17 
Ala.  618  (1850)  ;  Pierson  l-.  State,  12 
Ala.  149  (1847)  ;  Murphy  r.  State, 
1  Ala.  Sel.  Cas.  48  ;  Duncan  v. 
State,  49  Ark.  543  (1887);  s.c.  6  S. 
W.  Kep.  104 ;  Mize  v.  State,  36  Ark. 
653  (1880)  ;  Levells  i-.  State,  32  Ark. 
585  (1877)  ;  Palmore  i:  State,  29  Ark. 
248  (1874)  ;  McPherson  v.  State,  29 
Ark.  227  (1874)  ;  Coker  v.  State,  20 
Ark.  53  (1859)  ;  People  r.  Gonzales, 
71  Cal.  569  (1887)  ;  s.c.  9  Cr.  L.  Mag. 
807;  12  Pac.  Kep.  783;  People  v. 
Scott,  69  Cal.  69  (1886)  ;  s.c.  10  Pac. 
Kep.  188 ;  People  v.  Kobertson,  67 
Cal.  640  (1885)  ;  s.c.  6  Am.  Cr.  Kep. 
519;  s.c.  8  Pac.  Kep.  600;  People  v. 
Riggings,  65  Cal.  504  (1884)  ;  s.c.  4 
Pac.  Kep.  570 ;  People  v.  Bus/i,  65 
Cal.  129  (1884);  s.c.  5  .\m.  Cr.  Kep. 
459  ;  3  Pac.  Kep.  590  ;  People  r.  Wong 
Ah  Teak,  63  Cal.  544  (1883)  ;  People 
V.  Tamkin,62  Cal.  468  (1882)  ;  People 
V.  Westlake,  02  Cal.  303  (1882)  ;  s.c. 
4  Cr.  L.  Mag.  418  ;  People  r.  Cochran, 
61  Cal.  548  (1882)  ;  People  v.  Her- 
bert, 61  Cal.  544  (1882)  ;  People  v. 
Morine,  61  Cal.  .367  (1882);  People 
V.  Simons,  60  Cal.  72  (1882)  ;  People 
V.  Perdue,  49  Cal.  425  (1874)  ;  Peo- 
ple V.  Anderson,  44  Cal.  65   (1872)  ; 


People  V.  Walsh,  43  Cal.  447  (1872)  ; 
s.c.  1  Gr.  Cr.  Kep.  487  ;  People  r. 
Scoggins,  37  Cal.  670  (1809)  ;  People 
V.  Williams,  32  Cal.  280  (1867)  ;  Peo- 
ple i\  Barry,  31  Cal.  357  (1800) ;  Peo- 
ple V.  Campbell,  30  Cal.  312  (1866) ; 
People  i).  Batchelder,  27  Cal.  69 
(1864)  ;  s.c.  85  Am.  Dec.  231 ;  People 
V.  Gatewood,  20  Cal.  147  (1802)  ;  Peo- 
ple v.  Lamb,  17  Cal.  323  (1801)  ; 
People  V.  Hurley,  8  Cal.  390  (1857)  ; 
People  V.  Payne,  8  Cal.  341  (1857)  ; 
People  V.  Stonecifer,  6  Cal.  405 
(1856) ;  Morris  v.  Piatt,  32  Conn.  75 
(1864) ;  United  States  v.  Knowlton, 
3  Dak.  58  (1882);  United  States 
V.  Leighton,  3  Dak.  29  (1882)  ; 
Gladden  v.  State,  12  Fla.  562  (1868)  ; 
Simmons  v.  State,  79  Ga.  696  (1887)  ; 
s.c.  4  S.  E.  Kep.  894 ;  Darby  v.  State, 
79  Ga.  63  (1887)  ;  s.c.  3  S.  E.  Rep. 
663;  Wortham  v.  State,  77  Ga.  336 
(1883);  Koberts  v.  State,  65  Ga.  430 
(1880);  Brown  v.  State,  58  Ga.  212 
(1877);  Stiles  r.  State,  57  Ga.  183 
(1876)  ;  Thompson  v.  State,  55  Ga. 
47   (1875);  Malone  v.  State,   49  Ga. 

210  (1873) ;  Koach  v.  State,  34  Ga.  78 
(1864);  Evans  v.  State,  33  Ga.  4 
(1861);  Lingo  v.  State,  29  Ga.  470 
(1859);  Bailey  i:  State,  26  Ga.  579 
(1858);  Hinch  v.  State,  25  Ga.  699 
(1858) ;  Hawkins  v.  State,  25  Ga.  209 
(1858);    Mitchell    v.    State,    22    Ga. 

211  (185^7);  Teal  v.  Slate,  22  Ga. 
75  (1857) ;  s.c.  68  Am.  Dec.  482  ; 
Keener  v.  State,  18  Ga.  194  (1855); 
s.c.  03  Am.  Dec.  269;  Haynes  v. 
State,  17  Ga.  465  (1855) ;  Monroe  v. 


SEC.  167.] 


DEFENCES   TO   HOMICIDE. 


175 


any  fear  of  danger  to  himself.  Notwitlistanding  Craton  had 
given  Harrison,  the  deceased,  such  great  provocation,  and  not- 
withstanding the  insulting  surroundings  in  which  the  latter 
was  tlien  placed,  that  great  jurist,  Ruffin,  employed  the  follow- 
ing language:  "The  court  agree  that  if  Harrison  either 
assaulted  or  imprisoned  Craton  unlawfully,  it  would  amount  to 
a  legal  provocation.  The  question  is,  whether  that  was  the  case. 
There  Avas  no  actual  assault  in  this  case.  There  was  no 
attempt  to  strike.     There  wa,  a  mere  threat  that  the  deceased 


State,  5  Ga.  85  (1848)  ;  Hudgins  r. 
State,  2  Ga.  17o  (1847)  ;  Gilmore  v. 
People,  124  111.  380  (1888);  s.c.  15 
N.  E.  Rep.  758;  Panton  v.  People,  114 
111.  505  (1885);  s.c.  5  Am.  Cr.  Rep. 
425;  2  N.  E.  Rep.  411;  Kinney  v.  Peo- 
ple, 108  111.  519  (1884);  Cahill  v. 
People,  106  111.  621  (1883);  Stein- 
meyer  v.  People,  95  111.  383  (1880)  ; 
Davison  v.  People,  90  111.  221  (1878); 
Davis  V.  People,  88  111.  350  (1878)  ; 
Allen  V.  People,  77  111.  484  (1875); 
Roach  I'.  People,  77  111.  25  (1875) ; 
Lawlor  v.  People,  74  111.  228  (1874)  ; 
Greschia  v.  People,  53  111.  295  (1870)  ; 
Murphy  v.  People,  37  111.  447  (1865)  ; 
Maher  v.  People,  24  111.  241  (1860); 
Schnier  v.  People,  23  111.  17  (1859) ; 
Hopkinson  v.  People,  18  111.  264 
(1857)  ;  Campbell  i'.  People,  16  111. 
17  (1854)  ;  s.c.  61  Am.  Dec.  49  ;  Story 
r.  State,  99  Ind.  413  (1884);  Adams 
V.  State,  65  Ind.  565  (1879)  ;  Runi/an 
V.  State,  57  Ind.  80  (1877)  ;  s.c'  26 
Am.  Rep.  52;  2  Am.  Or.  Rep.  318; 
Wall  V.  State,  51  Ind.  453  (1875); 
West  V.  State,  59  Ind.  113  (1877)  ; 
Kingen  r.  State,  45  Ind.  518  (1874)  ; 
Creek  v.  State,  24  Ind.  154  (1865)  ; 
De  Forest  v.  State,  21  Ind.  23  (1863)  ; 
Hittner  v.  State,  19  Ind.  48  (1862)  ; 
State  1-.  Thompson,  71  Iowa,  503 
(1887)  ;  s.c.  .32  N.  W.  Rep.  476;  State 
v.  Penqo,  70  Iowa,  657  (1886)  ;  s.c.  8 
Cr.  L.  Mag.  156 ;  28  N.  W.  Rep.  457 ; 
State  V.  Archer,  69  Iowa,  420  (1886)  ; 
s.c.  29  N.  W.  Rep.  333;  State  v. 
Mahan,  68  Iowa,  304  (1886);  s.c.  27 
N.  W.  Rep.  249 ;  State  v.  Sterrett,  68 
Iowa,  76  (1885)  ;  s.c.  25  N.  W.  Rep. 
936;  State  v.    Shelton,  64  Iowa,   333 


(1884)  ;  s.c.  20  X.  W.  Rep.  4-59;  State 
V.  Middleham,  62  Iowa,  150  (1883)  ; 
S.c.  17  N.  VV.  Rep.  446;  State  v.  West- 
fall,  49  Iowa,  328  (1878);  State  v. 
Stanley,  33  Iowa,  526  (1871)  ;  State  v. 
Collins,  32  Iowa,  36  (1871);  State  v. 
Burke,  .30  Iowa,  331  (1870);  ,SV«/e  v. 
Benham,  23  Iowa,  154  (1867)  ;  s.c.  92 
Am.  Dec.  417;  State  v.  Kennedy,  20 
Iowa,  372  (1866)  ;  State  r.  Neeley,  20 
Iowa,  108  (1865)  ;  State  v.  Thompson, 
9  Iowa,  188  (1859)  ;  s.c.  74  Am.  Dec. 
342 ;  Tweedy  v.  State,  5  Iowa,  433 
(1857);  State  v.  Rose,  30  Kan.  501 
(1883)  ;  s.c.  1  Pac.  Rep.  817  ;  State  v. 
Bohan,  19  Kan.  28,  55  (1877)  ;  State 
V.  Eogers,  18  Kan.  78  (1877)  ;  s.c.  26 
Am.  Rep.  754;  State  v.  Potter,  13 
Kan.  414  (1874);  State  v.  Home,  9 
Kan.  119  (1872)  ;  s.c.  1  Gr.  Cr.  Rep. 
718;  Stanley  v.  Commonwealth,  86 
Ky.  440  (1887) ;  s.c.  9  Am.  St.  Rep. 
305;  6  S.  W.  Rep.  155;  Marcum  i-. 
Commonwealth  (Ky.),  4  S.  W.  Rep. 
7  (1887) ;  Ferris  v.  Commonwealth 
(Ky.),  1  S.  W.  Rep.  729  (1886); 
Wright  I'.  Commonwealth,  85  Ky.  123 
(1887)  ;  s.c.  9Cr.  L.  Mag.  331;  2  S. 
W.  Rep.  904  ;  Odor  v.  Commonwealth, 
80  Ky.  32  (1882)  ;  Minton  v.  Com- 
monwealth, 79  Ky.  4(il  (1881);  Fain 
r.  Commonwealth,  78  Ky.  183  (1879)  ; 
s.c.  39  Am.  Rep.  213;  Law.  Insan. 
772;  Parsons  v.  Commonwealth,  78 
Ky.  102  (1879)  ;  Farris  v.  Common- 
wealth, 14  Bush  (Ky.)  362  (1878)  ; 
Kennedy  v.  Commonwealth,  14  Bush 
(Ky.)  340  (1878)  ;  Terrell  v.  Com- 
monwealth, 13  Bush  (Ky.)  246  (1877)  ; 
Lubj^  I'.  Commonwealth,  12  Bush 
(Ky.)    1    (1876)  ;    Holloway  v.  Com- 


176 


HOMICIDE. 


[chap    VII. 


would  kill  the  prisoner,  if  he  did  not  give  up  the  other's 
wife,  and  accompanying  the  threat,  the  deceased  drew  his 
knife.  But  he  made  no  attempt  to  use  it,  unless  it  be  that 
he  raised  his  hand  with  the  knife  drawn  as  the  prisoner 
approached  him.  But  if  he  did  so,  that  would  not  be  an 
unlawful   assault;    for  as   the    prisoner  got    from  his  horse, 


monwealth,  11  Bush  (Ivy.)  344  (1875)  ; 
Coffniiin  r.  Coiniiionvvealth,  10  Bush 
(Ky.)  495  (1874)  ;  s.c.  1  Am.  Cr. 
Rep.  293 ;  Bohannon  v.  Common- 
wealth, 8  Busli  (Ky.)  481  (1871);  s.c. 
8  Am.  Hep.  474  ;  1  Gr.  Cr.  Rep.  613  ; 
Carico  v.  Commonwealth,  7  Bush 
(Ky.)  124  (1870)  ;  Young  r.  Com- 
monwealth, 6  Bush  (Ky.)312  (1809); 
Philips  V.  Conuiioniveiilth,  2  Duv.  (Ky.) 
328  (1805);  s.c.  87  Am.  Dec.  499; 
Payne  v.  Commonwealth,  1  Met.  (Ky.) 
370  (1858) ;  Meridith  ?■.  Common- 
wealth, 18  B.  Mon.  (Ky.)  49  (1857)  ; 
Rapp  V.  Commonwealth,  14  B.  Mon. 
(Ky.)  614  (1854)  ;  State  v.  Garlc,  35 
La.  An.  970  (1883)  ;  State  i-.  St.  Geme, 
31  La.  An.  302  (1879)  ;  State  v.  Swift, 
14  La.  An.  839  (1859)  ;  State  v.  Mul- 
len, 14  La.  An.  577  (1859)  ;  Common- 
wealth V.  White,  110  Mass.  407 
(1872) ;  Commonwealth  v.  Riley, 
Thach.  C.  C.  (Mass.)  471  (1837);  Com- 
monwealth V.  Selfridge,  1  Horn  & 
T.  (Mass.)  2  (1806)  ;  Brownell  v. 
People,  38  Mich.  732  (1878);  People 
7'.  Lilly,  38  Mich.  270  (1878);  People 
V.  Coughlin,  67  Mich.  466  (1887);  s.c. 
35  N.  W.  Rep.  72 ;  People  v.  Cook,  39 
Mich.  236  (1878)  ;  s.c.  33  Am.  Rep. 
380;  Hurd  v.  People,  25  Mich.  405 
(1872);  Patten  v.  People,  18  Mich. 
314  (1869)  ;  s.c.  100  Am.  Dec.  173  ; 
Pond  y.  People,  8  Mich.  150  (1860); 
People  I'.  Doe,  1  Mich.  457  (1850)  ; 
State  V.  Rheams,  34  Minn.  18  (1885)  ; 
s.c.  24  N.  W.  Rep.  302  ;  Slate  v.  Ship- 
pen,  10  Minn.  223  (1865)  ;  s.c.  88  Am. 
Dec.  70;  Ex  parte  Hamilton,  65  Miss. 
147  (1887);  s.c.  3  So.  Rep.  241; 
Lamar  v.  State,  64  Miss.  428  (1886); 
s.c.  1  So.  Rep.  354;  Hall  v.  State 
(Miss.)  1  So.  Rep.  351  (1887);  Guice 
V.  State,  60  Miss.  714  (1883)  ;  Bang 
V.  State,  60  Miss.  571  (1882)  ;  Scott  v. 


State,  56  Miss.  287  (1879)  ;  Kendrick 
V.  State,  55  Miss.  436  (1877)  ;  Parker 
V.  State,  55  Miss.  414  (1877)  ;  Forten- 
berry  y.  State,  55  Miss.  403  (1877); 
Long  V.  State,  52  Miss.  23  (1876)  ; 
Edwards  v.  State,  47  Miss.  581  (1873)  ; 
Wesley  v.  State,  37  Miss.  327  (1859)  ; 
s.c.  75  Am.  Dec.  63  ;  Cotton  i'.  State, 
31  Miss.  504  (1856)  ;  Staten  v.  State, 
30  Miss.  619  (1856)  ;  Green  v.  State, 
28  Miss.  687  (1855)  ;  Dyson  v.  State,  26 
Miss.  362  (1853)  ;  State  v.  Hardy,  95 
Mo.  455  (1888) ;  s.c.  8  S.  W.  Rep. 
416  ;  State  v.  Davidson,  95  Mo,  155 
(1888)  ;  s.c.  8  S.  W.  Rep.  413;  State 
V.  Rose,  92  Mo.  201  (1887)  ;  s.c.  4  S. 
W.  Rep.  733  ;  State  v.  Downs,  91  Mo. 
19  (1886)  ;  s.c.  3  S.  W.  Rep.  219; 
Nichols  V.  Winfrey,  90  Mo.  403  (1886)  ; 
2  S.  W.  Rep.  305  ;  State  v.  Elliott,  90 
Mo.  350  (1886)  ;  s.c.  2  S.  W.  Rep. 
411  ;  State  v.  Rider,  90  Mo.  54  (1886)  ; 
s.c.  1  S.  W.  Rep.  825 ;  State  v.  Peak, 
85  Mo.  190  (1884)  ;  State  v.  Johnson, 
76  Mo.  121  (1882)  ;  State  v.  Eaton,  75 
Mo.  586  (1882)  ;  State  v.  Harris,  73 
Mo.  287  (1880)  ;  State  v.  Edwards, 
70  Mo.  480  (1879)  ;  State  v.  Brown, 
64  Mo.  367  (1877)  ;  State  v.  Stockton, 
61  Mo.  382  (1875)  ;  State  v.  Hudson, 
59  Mo.  135  (1875)  ;  State  v.  Under- 
wood, 57  Mo.  40  (1874)  ;  s.c.  1  Am. 
Cr.  Rep.  251 ;  State  v.  Linney,  52  Mo. 
40  (1873);  s.c.  1  Gr.  ^r.  Rep.  753; 
State  V.  Keenc,  50  Mo.  357  (1872)  ; 
State  V.  Sloan,  47  Mo.  604  (1871); 
State  i".  Starr,  38  Mo.  270  (1866)  ;  State 
V.  O'Connor,  31  Mo.  389  (1861)  ;  State 
1-.  Hicks,  27  Mo.  588  (1859)  ;  Parrish 
V.  State,  14  Neb.  60  (1883)  ;  s.c.  15 
N.  W.  Rep.  357  ;  State  v.  Smith,  10 
Nev.  106  (1875)  ;  State  v.  Wells,  1 
N.  J.  L.  (Co.xc)  424  (1790);  .s.c.  1 
Am.  Dec.  211  ;  Territory  v.  Baker 
(N.  Mex.),  13  Pac,   Rep.  'sO  (1887)  ; 


SEC.  167.] 


DEFENCES   TO    HOMICIDE. 


177 


stripped  himself,  and  declared  that  he  would  beat  the  deceased, 
if  he  did  not  leave  him  in  possession  of  his  wife,  and  then 
went  at  defendant  for  the  purpose  of  beating  him,  with  an 
instrument,  apparently,  from  its  size,  sufficient  to  give  a  heavy 
blow,  and  with  the  instrument  raised,  and  the  deceased  still 
sat  on  his  horse  and  did  not  move  from  his  place,  an  attempt, 


People  V.  Sullivan,  7  X.  Y.  390  (1852)  ; 
Shorter  v.  People,  2  N.  Y.  193  (1849) ; 
I'eople  r.  Liiiub,  54  Barb.  (N.  Y.)  342 
(1865);  s.c.  2  Keyes  (N.  Y.)  8(30; 
Patterson  v.  People,  46  Barb.  (N.  Y.) 
625  (1866)  ;  People  r.  Shorter,  4  Barb. 
(N.  Y.)  460  (1848)  ;  People  i:  Harper, 

1  Edm.  (N.  Y.)  Sel.  Gas.  180  (1845)  ; 
People  V.  McLeod,  1  Hill  (N.  Y.)  377 
(1841)  ;  s.c.  37  Am.  Dec.  328  ;  Uhl  i-. 
People,  5  Park.  Cr.  Gas.  (X.  Y.)  410 
(1863)  ;  Pfomer  v.  People,  4  Park. 
Gr.  Gas.  (N.  Y.)  558  (1860);  People 
?;.  Tannan,  4  Park.  Gr.  Gas.  (X.  Y.) 
514  (1860)  ;  People  r.  Gole,  4  Park. 
Cr.  Gas.  (N.  Y.)  35  (1857)  ;  People 
v.  Austin,  1  Park.  Cr.  Gas.  (X.  Y.) 
154  (1847)  ;  State  r.  Brittain,  89  N.  G. 
481  (1883);  State  v.  Matthews,  78 
N.  G.  532  (1878) ;  State  v.  Harman.  78 
N.  G.  515  (1878) ;  State  i-.  Dixon,  75 
N.  G.  275  (1876)  ;    State    r.   Merrill, 

2  Dev.  (X.  G.)  L.  269  (1829)  ;  State 
V.  lloane,  2  Dev.  (X.  G.)  L.  58  (1828) ; 
State  V.  Hill,  4  Dev.  &  B.  (N.  G.)  L. 
491  (1839)  ;  s.c.  34  Am.  Dec.  396  ; 
State  V.  Kutherford,  1  Hawks  (X.  C.) 
L.  457  (1821)  ;  s.c.  9  Am.  Dec.  058  ; 
State  V.  Craton,  6  Ired.  (N.  G.)  L.  104 
(1845)  ;  State  v.  Ingold,  4  Jones 
(X.  G.)  L.  216  (1856)  ;  s.c.  67  Am. 
Dec.  283 ;  State  r.  Harris,  1  Jones 
(X.  G.)  L.  190  (1853)  ;  State  v.  Med- 
lin,  1  Winst.  (N.  G.)  L.  99  (1864)  ; 
Darling  v.  Williams,  35  Ohio  St.  58 
(1878)  ;  Erinn  v.  State,  29  Ohio  St. 
186  (1876)  ;  s.c.  23  Am.  Rep.  733  ; 
Stoffer  V.  State,  15  Ohio  St.  47  (1864)  ; 
s.c.  80  Am.  Dec.  477  ;  Stewart  v.  State, 
1  Ohio  St.  66  (1852)  ;  Goodall  v.  State, 
I  Oreg.  333  (1861)  ;  s.c.  80  Am.  Dec. 
390 ;  Pistorius  v.  Commonwealth,  84 
Pa.  St.  158  (1877)  ;  s.c.  2  Am.  Gr. 
Kep.  284  ;  Murray  v.  Commonwealtli, 
79  Pa.  St.  311  (1875)  ;  Commonwealth 

12 


V.  Drum,  58  Pa.  St.  9  (1868)  ;  Logue 
V.  Commonwealth,  38  Pa.  St.  265 
(1861);  s.c.  80  Am.  Dec. 481;  Common- 
wealth V.  Carey,  2  Brewst.  (Pa.)  404 
(1870)  ;  Commonwealth  v.  Crawford, 
8  Phila.  (Pa.)  490  (1870);  State  v. 
Jones,  29  S.  G.  201  (1888)  ;  s.c.  7 
S.  E.  Rep.  290;  11  Gr.  L.  Mag.  04; 
State  V.  Jacobs,  28  S.  G.  29  (1887); 
s.c.  4  S.  E.  Rep.  799;  State  v.  Beck- 
ham, 24  S.  G.  283  (1885)  ;  Jackson  v. 
State,  0  Baxt.  (Tenn.)  452  (1873); 
Rippy  V.  State,  2  Head  (Tenn.)  217 
(1858) ;  Williams  v.  State,  3  Heisk. 
(Tenn.)  370  (1872);  s.c.  1  Gr.  Gr.. 
Rep.  255;  Young  v.  State,  11  Humplu 
(Tenn.)  200  (1850)  ;  Copeland  v.  State. 

7  Humph.  (Tenn.)  479  (1840)  ;  arain^ 
ger  v.  State,  5  Yerg.  (Tenn.)  459 
(1830);  s.c.  26  Am.  Dec.  278;  Gille- 
land  v.  State,  44  Tex.  356  (1875); 
James  r.  State,  44  Tex.  314  (1875); 
Tiner  v.  State,  44  Tex.  128  (1875); 
Horbach  v.  State,  43  Tex.  242  (1875)  ; 
s.c.  1  Am.  Gr.  Rep.  330  ;  Irwin  v.  State, 
43  Tex.  230  (1875);  Agitone  v.  State, 
41  Tex.  501  (1874)  ;  Myers  v.  State,  33 
Tex.  525  (1870);  Parker  v.  State,  31 
Tex.  132  (1868) ;  Johnson  v.  State, 
27  Tex.  758  (1865)  ;  Stockton  v.  State, 
25  Tex.  772  (1800);  Isaacs  r.  State,  25 
Tex.  174  (1800);  Hinton  v.  State,  24 
Tex.  454  (1859)  ;  Wall  v.  State,  18 
Tex.  082  (1857) ;  s.c.  70  Am.  Dec. 
302;  Lander  v.  State,  12  Tex.  462 
(1854)  ;  Bean  v.  State,  25  Tex.  App. 
340  (1888)  ;  s.c.  5  Am.  Cr.  Rep.  477; 

8  S.  W.  Rep.  278  ;  Alexander  v.  State, 
25  Tex.  App,  200  (1888)  ;  s.c.  8  Am. 
St.  Rep.  438;  7  S.  W.  Rep.  867 ;  Bon- 
nard  I'.  State,  25  Tex.  App.  173  (1888); 
s.c.  8  Am.  St.  Rep.  431 ;  7  S.  W.  Rep. 
862;  Lynch  v.  State,  2t  Tex.  App. 
350  (1888);  s.c.  5  Am.  St.  Rep.  888; 
0  S.  W.  Rep.  190 ;  Tillery  v.  State,  24 


178 


HOMICIDE. 


[chap.  VII. 


if  made  by  the  deceased,  to  strike  under  those  circumstances, 
and  supposing  the  deceased  was  not  wrong  in  stopping  the 
prisoner  from  carrying  away  his  wife,  would  have  been  justi- 
fiable in  self-defence.  The  prisoner  was  in  the  act  of  making 
the  first  assault,  and  that,  probably,  of  a  grievous  kind,  and 
the  deceased  would  have  had  a  right  to  prevent  him  if  he 
could."  1 

The  supreme  court  of  Arkansas  say  in  the  recent  case  of 
Dnncan  v.  State,^  that:  "No  person  in  resisting  an  assault 
made  upon  him  in  the  course  of  a  sudden  brawl  or  quarrel, 

1  See  Judge  v.  State,  58  Ala.  406  (1877)  ;  s.c.  29  Am.  Rep.  757. 

2  49  Ark.  543  (1887) ;  s.c.  0  S.  W.  Uep.  104. 


Tex.  App.  251  (1888)  ;  s.c.  5  Am.  St. 
Kep.  883;  5  S.  W.  Rep.  842;  Allen  v. 
State,  24  Tex.  App.  216  (1888)  ;  s.c. 
6  S.  VV.  Rep.  187  ;  Wliite  v.  State,  23 
Tex.  App.  154  (1887)  ;  s.c.  3  S.  W. 
Rep.  710;  Spearman  v.  State,  23  Tex. 
App.  224  (1887)  ;  s.c.  4  S.  W.  Rep. 
586  ;  May  i-.  State,  23  Tex.  App.  146 
(1887)  ;  s.c.  4  S.  W.  Rep.  591  ;  Wil- 
liams V.  State,  22  Tex.  App.  497 
(1887)  ;  s.c.  4  S.  W.  Rep.  64;  Orman 
V.  State,  22  Tex.  App.  604  (1887); 
s.c.  58  Am.  Rep.  662;  3  S.  W. 
Rep.  468;  Patillo  v.  State,  22  Tex. 
App.  586  (1887)  ;  s.c.  3  S.  W.  Rep. 
766;  Roach  v.  State,  21  Tex.  App. 
249  (1887)  ;  Tliuston  v.  State,  21  Tex. 
App.  245  (1887)  ;  Hunnicutt  v.  State, 
20  Tex.  App.  632  (1886)  ;  Bell  v.  State, 
20  Tex.  App.  445  (1886);  Penland  v. 
State,  19  Tex.  App.  365  (1886)  ;  Arto 
v..  State,  19  Tex.  App.  126  (1886)  ; 
Parker  v.  State,  18  Tex.  App.  72 
(il885)  ;  Bell  ;;.  State,  17  Tex.  App. 
538  (1875);  Risby  v.  State,  17  Tex. 
App.  517  (1875)  ;  Smith  (.-.  State,  15 
Tex.  App.  338  (1884);  Branch  v. 
State,  15  Tex.  App.  96  (1884)  ;  Cart- 
wright  V.  State,  14  Tex.  App.  486 
(1884);  King  r.  State,  13  Tex.  App. 
277  (1883);  Jordan  v.  State,  11  Tex. 
App.  435  (1882)  ;  Foster  v.  State,  11 
Tex.  App.  105  (1882)  ;  Sims  v.  State, 
9  Tex.  App.  586  (1881)  ;  Holt  v.  State, 
9  Tex.  App.  571  (1881);  Ken.lall  r. 
State,  8  Tex.  App.  569   (1880)  ;  Babh 


V.  State,  8  Tex.  App.  173  (1880); 
Pharr  v.  State,  7  Tex.  App.  472 
(1880)  ;  Richardson  v.  State,  7  Tex. 
App.  486  (1880)  ;  Marnoch  v.  State, 
7  Tex.  App.  269  (1880)  ;  Hudson  v. 
State,  6  Tex.  App.  565  (1879)  ;  s.c.  32 
Am.  Rep.  593;  Bode  v.  State,  6  Tex. 
App.  424  (1879);  May  v.  State,  6 
Tex.  App.  191  (1879)  ;  Peck  r.  State, 
5  Tex.  App.  611  (1879)  ;  Edwards  v. 
State,  5  Tex.  App.  593  (1879)  ;  Blake 
V.  State,  3  Tex.  App.  149  (1878)  ; 
Wasson  v.  State,  3  Tex.  App.  481 
(1878)  ;  Lister  v.  State,  3  Tex.  App. 
17  (1878)  ;  Williams  v.  State,  2  Tex. 
App.  271  (1878)  ;  West  r.  State,  2 
Tex.  App.  460  (1878)  ;  Plasters  v. 
State,  1  Tex.  App.  673  (1877)  ;  Stevens 
V.  State,  1  Tex.  App.  591  (1877)  ;  Hon- 
esty V.  Commonwealth,  81  Va.  283 
(1886)  ;  Stoneman  v.  Commonwealth, 
25  Gratt.  (Va.)  887  (1874);  Vaideii 
V.  Commonwealth,  12  Gratt.  (Va.)  717 
(1855)  ;  State  v.  Greer,  22  W.  Va. 
800  (1883)  ;  State  v.  Cain,  20  W.  Va. 
679  (1882)  ;  State  i:  Abbott,  8  W.  Va. 
741  (1875)  ;  Clifford  r.  State,  58  Wis. 
477  (1883);  s.c.  9  N.  W.  Rep.  389; 
State  V.  Ufarfii),  30  Wis.  216  (1872)  ; 
s.c.  11  Am.  Rep.  567;  United  States 
V.  Mingo,  2  Curt.  C.  C.  1  (1854); 
United  States  v.  Outerbridge,  5  Sawy. 
C.  C.  620  (1868)  ;  United  States  V. 
Willberger,  3  W;ish.  C.  C.  515  (1819)  ; 
United  StMtes  r.  King,  34  Fed.  Rep. 
302  (1888). 


SEC.  167.]  DEFENCES   TO   HOMICIDE.  179 

or  upon  a  .sudden  rencounter,  or  in  a  combat  on  a  sudden  quar- 
rel, or  from  anger  suddenly  aroused  at  the  time  it  is  made,  is 
justified  or  excused  in  taking  the  life  of  the  assailant,  unless 
he  is  so  endangered  by  such  assault  as  to  make  it  necessary 
to  kill  the  assailant  to  save  his  own  life,  or  to  prevent  a  great 
bodily  injury,  and  he  employed  all  the  means  in  his  power, 
consistent  with  his  safety,  to  avoid  the  danger,  and  avert  the 
necessity  of  killing.  The  danger  must,  apparentl3%  be 
'imminent,  irremediable,  and  actual,'  and  he  must  exhaust 
all  the  means  within  his  power,  consistent  with  his  safety,  to 
protect  himself,  and  the  killing  must  be  necessary  to  avoid 
the  danger.  If,  however,  the  assault  is  so  fierce  as  to  make 
it,  apparently,  as  dangerous  for  him  to  retreat  as  to  stand,  it 
is  not  his  duty  to  retreat,  but  he  may  stand  his  ground, 
and,  if  necessary  to  save  his  own  life,  or  prevent  a  great 
bodily  injur}',  slay  his  assailant."  ^ 

The  supreme  court  of  California  say  in  the  case  of  People 
V.  Robertson :  ^  '^  If  a  person  is  assaulted  by  another,  with 
whom  he  engages  in  a  combat,  he  must  really  and  in 
good  faith  endeavor  to  decline  any  further  struggle  before 
taking  the  life  of  his  assailant.  According  to  the  common 
law  it  is  the  duty  of  a  person  assaulted  to  give  way  '  as  far 
as  the  fierceness  of  the  assault  will  permit  him.'  ^  But  if  the 
assault  be  so  fierce  as  not  to  allow  him  to  yield  a  step  without 
manifest  danger  of  his  life,  or  great  bodily  harm,  then,  in  his 
defence,  he  may  kill  his  assailant  instantly ;  and  this,  says 
Blackstone,  '  is  the  doctrine  of  universal  justice  as  well  as  of 
the  municipal  law.'"*  Upon  that  principle  are  founded  the 
provisions  of  the  California  Penal  Code  on  the  same  subject. 
Section  one  lunidred  and  ninety-seven  of  the  code  in  effect 
declares  that  if  a  person  is  assaulted  in  such  a  way  as  to  give 
him  ground,  as  a  reasonably  prudent  man,  in  the  condition  in 
which  the  as.sault  places  him,  to  apprehend  a  design  on  the 
part  of   the  assailant  to  commit  a   felony  upon    him,  or    to 

1  See  Dolan   r.  State,  40  .\rk.  459  Comni.  180-185;  1  East  P.  C.  279,   § 

(1883);  Fitzpatrick  r.  State,  37  Ark.  50;  Fost.  273;  1    Hawk.  P.  C.  87,  §§ 

252  (1881);   Harris  r.  State,  3«  Ark.  18-18. 

127  (1880);  Levells  v.  State,  32  Ark.  -(57  Cal.  G46   (1885);    s.c.   6  Am. 

589  (1877)  ;    McPherson  v.  State,  29  Cr.  Rep.  519. 
Ark.   231,   233-235    (1874)  ;  Palmore  '^  1  Hale  P.  C.  483. 

V.  State,  29  Ark.   2G7    (1874)  ;  4  Bl.  ■»  4  Bl.  Comm.  p.  185. 


180  HOMICIDE.  [chap.  VII. 

do  him  some  great  bodily  harm,  he  has  the  right  instantly 
to  defend  himself,  and,  if  necessary,  to  prevent  such  real  or 
apparent  danger  to  his  person,  to  kill  his  assailant.  Real  or 
apparent  danger,  or  danger  imminent  and  immediate  to  life 
or  limb,  is  therefore  a  sufficient  condition  in  which  to  exer- 
cise the  right  of  self-defence.  No  withdi-awal  or  retreat  is 
required.  So  assailed,  a  person  has  a  riglit  to  stand  his 
ground,  and,  if  necessary  in  defence  of  himself,  slay  his 
assailant.  But  necessity,  real  or  apparent,  for  taking  human 
life,  arising  out  of  the  circumstances  in  which  the  homicide 
is  committed,  must  exist,  and  the  person  himself  must  be 
without  fault.  '  The  weight  of  authority,'  says  the  supreme 
court  of  Indiana,  '  establislies  the  doctrine  that  when  a  per- 
son, being  without  fault  and  in  a  place  where  he  has  a  right 
to  be,  is  violently  assaulted,  lie  may,  without  retreating,  repel 
force  by  force  ;  and  if,  in  the  reasonable  exercise  of  his  right 
of  self-defence,  his  assailant  is  killed,  he  is  justifiable.'  ^ 

"  In  this  case,  according  to  the  evidence,  the  defendant 
was  not  conducting  himself  lawfully.  He  should  have  left 
the  store  Avhen  he  was  told  to  go.  He  had  no  right  to  remain 
and  abuse  the  person  in  charge  of  the  same,  with  opprobrious 
epithets  and  threats  to  kill.  Being  where  he  had  no  right  to 
be,  and  doing  what  he  had  no  right  to  do,  he  was  not  without 
fault  when  Davis  assailed  him  in  order  to  compel  him  to  go 
away.  Nor  did  the  nature  of  the  assault  upon  him  endanger 
his  life  or  limb.  There  was  no  time,  from  the  commencement 
of  the  affray  to  the  time  of  the  stabbing,  when  he  could  not 
have  withdrawn  without  danger.  That  being  so,  the  neces- 
sity for  taking  the  life  of  his  assailant  did  not  exist,  except 
by  his  own  creation ;  for  when  he  got  uj)  from  the  porch 
where  he  had  fallen,  he  could  hive  gone  away  out  of  danger ; 
but  he  turned  upon  Davis,  and,  engaging  him  in  a  struggle 
over  the  stick  with  which  Davis  had  been  prodding  him, 
forced  him  inside  the  store  and  killed  him.  When  a  killing 
takes  place  under  such  circumstances,  it  is  true,  as  matter  of 
law,  that  the  slayer  should,  really  and  in  good  faith,  have 
endeavored  to  decline  any  further  struggle  before  the  homi- 
cide was  committed." 

1  See  Kunyan  i'.  State,  57  Ind.  84   (1877). 


SEC.  167.]  DEFENCES   TO   HOMICIDE.  181 

The  same  court  say  in  the  case  of  People  v.  Westlake,^  that : 
''Justification  for  a  homicide,  according  to  the  California 
Penal  Code,  must  rest  upon  two  things:  (1)  a  reasonable 
cause ;  (2)  an  actual  apprehension  of  a  design  to  commit  a 
felony  or  to  do  some  great  bodily  injury.  Both  must  exist,  or 
neither  will  avail.  To  constitute  the  defence,  the  apprehen- 
sion of  danger  must  be  founded  on  sufficient  circumstances, 
real  or  aj^parent,  to  authorize  the  opinion  that  the  felonious 
design  then  exists;  previous  threats  or  menacing  conduct 
constitute  part  of  such  circumstances.  And  the  circum- 
stances must  not  only  be  such  as  authorize  the  fear  of  death 
or  great  bodily  harm,  but  the  fear  caused  by  them  must  be 
actual,  —  really  entertained,  —  and  the  homicidal  act  must 
have  been  done  under  the  controlling  influence  of  that  fear, 
or,  in  other  words,  under  the  honest  and  well-founded  belief 
that  it  was  absolutely  necessary  to  kill  at  that  moment  to  save 
from  the  imminent  danger  that  menaced  life  or  limb.  Can 
such  a  belief  arise  out  of  the  circumstances  of  necessity  or 
danger  which  a  party  has,  intentionally  or  by  his  own  fault, 
brought  upon  himself?  We  think  not.  Hence  w^e  see  no  error 
in  the  following  instruction  upon  the  subject  of  justifi- 
cation, to  which  the  defendant  took  exceptions:  'If  you 
believe  beyond  a  reasonable  doubt,  from  the  evidence,  that 
the  defendant  killed  the  deceased,  then  to  render  said  killing 
justifiable,  it  must  appear  that  the  defendant  was  wholly 
without  fault  imputable  to  him  by  law  in  bringing  about  or 
commencing  the  difficulty  in  which  the  mortal  wound  was 
given.' 

"  The  instruction  is  taken  literally  from  the  decision  of  the 
late  supreme  court  in  People  v.  Lamb,^  which  has  been  since 
followed  and  approved  by  the  California  court  in  People  v. 
Simons.3  The  doctrine  enunciated  in  those  cases  seems  to 
have  been  questioned ;  but  it  was  not  questioned  by  a  majority 
of  the  judges  who  concurred  in  that  decision ;  and  the  case  is 
not  entitled  to  be  considered  as  an  authoritative  one  over- 
ruling the  former  cases.  And  those  cases,  we  think,  should 
not  be  overruled,  for,  as  a  proposition  in  criminal  law,  the 

1  62  Cal.  .303  (1882)  ;  s.c.  4  Cr.  L.  ^  60  Cal.  72  (1882)  ;  s.c.  8  Pac.  C. 
Mag.  418.                                                        L.J.  1127. 

2  17  Cal.  323  (1861). 


182  HOMICIDE.  [chap.  VII. 

doctrine  enunciated  b}'  them  rests  upon  reason  and  authority. 
As  has  been  already  said,  the  apprehension  of  danger  to  life 
or  limb  which  justified  a  man  for  taking  the  life  of  another, 
must  be  an  honest  one,  —  one  that  is  well  grounded,  —  and 
must  arise  out  of  a  reasonable  cause  ;  but  a  cause  which 
originates  in  the  fault  of  the  person  himself  —  in  a  quarrel 
which  he  has  provoked  or  in  a  danger  which  he  has  volunta- 
rily brought  upon  himself,  by  his  own  misconduct  — cannot 
be  considered  reasonable  or  sufficient  in  law  to  support  a 
well-grounded  apprehension  of  imminent  danger  to  his  person. 
Error  of  apprehension  the  law  overlooks  when  a  man  is  called 
upon  to  act  on  appearances ;  but  it  does  not  overlook  dis- 
honesty of  apprehension.  Hence  a  real  or  apparent  necessity 
brought  about  by  the  design,  contrivance,  or  fault  of  the 
defendant,  cannot  be  availed  of  as  a  defence  for  the  commis- 
sion of  a  crime. ^ 

''Yet  it  is  not  to  be  doubted  that  a  person  accused  of 
crime  may  show  in  justification  that,  although  he  brought 
upon  himself  an  imminent  dang-er,  he,  in  the  presence  of 
that  necessity,  changed  his  mind  and  conduct,  and  honestly 
endeavored  to  escape  from  it,  but  could  not  without  striking 
the  mortal  blow.  But  tliat  is  not  the  present  case.  And 
in  the  absence  of  such  circumstances  it  must  be  true  as  a 
legal  proposition,  that  where  a  defendant  seeks  and  brings 
upon  himself  a  difficulty  with  the  deceased,  in  which  he 
willingly  continues  until  he  involves  himself  in  the  necessity 
to  kill,  the  law  will  not  hold  him  guiltless.  The  right  of 
self-defence,  which  justifies  a  homicide,  does  not  include  the 
right  of  attack." 

The  Kansas  court  say,  in  the  case  of  State  v.  Rogers r^  "We 
do  not  hold  that  when  one  person,  with  no  felonious  intent, 
but  simply  for  the  purpose  of  inflicting  a  [)ersonal  chastise- 
ment, strikes  another  Avith  his  hand,  he  has  absolutely  forfeited 
all  right  to  exist,  as  the  able  counsel  for  the  ai)[)ellant  sug- 
gests must  be  the  result,  if  this  instruction  be  held  not  good 

1  See  Eiltiml  v.  State,  52  Ala.  322  7G2  (1870);  Kippy  v.  State,  2  Head 

(1875);    Koach   v.   State,    34    Ga.    78  (Tenii.)  217  (1858). 
(1884)  ;    Gainey    i-.    People,    !)7     111.  MS  Kan.  78  (1877);  s.c.  20  Am. 

271  (1881) ;    State  v.  Neeley,  20  Iowa,  Hep.  754. 
109  (1805)  ;  Evans  i-.  State,  44  Miss. 


SEC.  167. J  DEFENCES    TO    HOMICIDE.  183 

law.  In  discussing  the  question  of  self-defence,  Lord  Hale 
says:  'Supposing  that  A  by  malice  makes  a  sudden  assault 
upon  B,  who  strikes  again,  and  pursuing  hard  upon  A,  A 
retreats  to  the  wall,  and  in  saving  his  own  life  kills  li  ;  some 
liave  held  this  to  be  murder,  and  not  se  defendo,  because  A 
gave  the  first  assault.  But  Mr.  Dalton  thinketh  it  to  be 
se  defendo,  though  A  made  the  first  assault,  either  with  or 
without  malice,  and  then  retreated.  It  seems  to  me  that  if 
A  did  retreat  to  the  wall  upon  a  real  intent  to  save  his  life, 
and  then  merely  in  his  own  defence  killed  B,  that  it  is 
se  defendo.  But  if,  on  the  other  side.  A,  knowing  his  advan- 
tage of  strength,  or  skill,  or  weaj)on,  retreated  to  the  wall 
merely  as  a  design  to  protect  himself  under  the  shelter  of 
the  law,  but  really  intending  to  kill  B,  then  it  is  murder,  or 
manslaughter,  as  the  circumstances  of  the  case  require.'  ^ 
Again,  he  says :  '  If  A  assaults  B  first,  and  upon  that  assault 
B  re-assaults  A,  and  that  so  fiercely  that  A  cannot  retreat  to 
the  wall  or  other  non  ultra  without  danger  to  his  life;  nay, 
though  A  fall  upon  the  ground  upon  the  assault  of  B,  and 
then  kills  B,  this  shall  not  be  interpreted  to  be  se  defendo^ 
but  to  be  murder,  or  simple  homicide,  according  to  the  cir- 
cumstances of  the  case ;  for  otherwise  we  should  have  all 
cases  of  murders  or  manslaughters  by  the  way  of  interpreta- 
tions turned  into  se  defendo.''  '^ 

"  The  authorities  uniformly  hold  that  the  person  who  first 
commences  a  malicious  assault,  then  continues  to  advance 
as  tlie  assailed  retreats,  or  does  not  in  good  faith  attempt,  so 
far  as  he  can,  to  withdraw  from  the  combat,  and  abandon 
the  conflict,  cannot  justify  taking  the  life  of  his  adversary, 
however  it  may  be  to  save  his  own,  and  must  be  deemed  to 
have  brought  upon  himself  the  necessity  of  killing  his  fellow- 
man.  We  see  no  reason  from  the  authorities  cited  by  counsel, 
or  the  argument  presented  in  behalf  of  the  appellant,  in  any 
way,  to  loosen  these  well-settled  principles  so  salutary  to 
prevent  altercations,  and  to  save  human  life.  The  mere 
striking  of  one  person  by  another,  with  the  intention  to 
commit  only  a  personal  chastisement,  is  almost  sure  to  be 
followed   by  a  dangerous,  if  not  deadly  result,  where   the 

1  1  Hale  p.  C.  479,  480.  2  \  Hale  P.  C.  482. 


184  HOMICIDE.  [chap.  VII. 

parties  are  armed  with  deadly  weapons,  as  in  this  case ;  and 
while  the  carrying  of  the  pistol  loaded  for  use  cannot  be  too 
severely  censured,  too  strongly  condemned,  it  is  unfortunately 
a  too  prevalent  custom  to  be  wholly  ignored,  6r  to  suppose 
that  an  encounter  between  two  persons  hostile  to  each  other 
will  not  result,  after  a  blow  is  given. by  the  first,  in  a  combat 
with  fists.  The  blow  from  the  one  is  often  followed  by  the 
pistol-shot  from  the  other.  The  assailant  places  himself  in 
peril  when  he  makes  the  assault ;  and  when  he  is  in  fault, 
and  calls  down  upon  himself  the  vengeance  of  the  assailed, 
he  cannot  be  justified  under  the  law  when  he  has  not  actually 
'  put  into  exercise  the  duty  of  withdrawing  from  the  place.' " 

Regarding  the  duty  to  retreat,  the  supreme  court  of  Iowa 
say,  in  the  early  case  of  State  v.  Thompson, ^  that :  "  It  has 
been  held  by  this  court  that  a  party  is  not  compelled  to  flee 
from  his  adversary,  who  assails  him  with  a  deadly  weapon, 
and  retreat  to  the  wall  before  he  can  justify  the  homicide.^ 
The  assault  may  be  so  fierce  as  not  to  allow  the  party  assailed 
to  yield  a  step  without  manifest  danger  of  his  life  or  of 
enormous  bodily  harm.  In  such  cases,  if  there  be  no  other 
way  of  saving  his  own  life,  he  may,  in  self-defence,  kill  his 
assailant,  and  the  killing  will  be  justifiable.  But  when  the 
attack  is  not  felonious,  the  rule  of  law  is  different.  If  it  is 
not  apparent  from  the  manner  of  the  assault,  the  nature  of 
the  weapon  used,  and  the  like,  that  the  assailant  intended 
to  commit  a  felony,  that  the  danger  was  imminent,  and  that 
the  species  of  resistance  used  was  necessary  to  avert  it,  the 
party  assailed  is  not  justified  in  resorting  to  the  use  of  a 
deadly  weapon  and  using  it  in  a  deadly  manner.^ 

"  In  Tennessee  it  has  l)een  held  that  if  a  man,  though  in 
no  danger  of  serious  bodily  harm,  through  fear,  alarm,  or 
cowardice,  kill  another  under  the  impression  that  great  bodily 
injury  is  about  to  be  inflicted  on  him,  it  is  neither  murder 
nor  manslaughter,  but  self-defence.*  '  This,'  says  Bronson,  J., 
in  Shorter  v.  People,^  '  was  going  too  far.     It  is  not  enough 

1  9  Iowa,  188  (1859)  ;  s.c.  74  Am.  ^  gee  Orninjier  v.  State,  5  Yerg. 
Pec.  342.                                                         (Teiiii.)  451)  (1830)  ;  s.c.  20  Am.  Dec. 

2  See  Tweedy  v.   State,  5   la.  433     278. 

(1857).  5  2  N.  Y.  197   (1849)  ;   s.c.  51  Am. 

•'  See  United  States  i-.  Wiltberger,     Dec.  280. 
3  Wash.  C.  C.  521  (1819). 


SEC.  168.]  DEFENCES   TO    HOMICIDE.  185 

that  the  party  believed  himself  in  danger,  unless  the  facts 
and  circumstances  were  such  that  the  jury  can  say  that  he 
had  reasonable  grounds  for  his  belief.'  " 

Sec.  168.  Same  —  Defence  by  another.  —  It  is  well  estab- 
lished that  what  one  may  do  in  his  own  defence,  another  may 
do  for  him,  if  he  believes  life  is  in  immediate  danger,  or  if 
such  danger  and  necessity  be  reasonably  apparent,  provided 
the  party  in  whose  defence  he  acts  was  not  in  fault.  ,  The 
Kentucky  court  say,  in  the  recent  case  of  Stanley  v.  Common- 
wealth,!  ^i^at  "  courts  were  slow  to  adopt  this  doctrine  in 
its  full  extent,  doubtless  for  fear  that  it  might  be  abused, 
and  sometimes  serve  as  a  shelter  to  those  who,  under  the  plea 
of  protecting  the  lives  of  others,  merely  executed  their  own 
o-uilty  purposes.  It  was,  however,  declared  by  this  court  in 
the  unpublished  opinions  in  the  cases  of  Roberts  v.  Conmion- 
wealth  and  Smith  v.  Commonwealth,  and  is  not  open  to  this 
objection  when  properly  applied." 

The  right  of  self-defence  rests  upon  necessity,  and  appar- 
ent reasonable  necessity  is  the  Avhole  law  and  reason  of  it. 
It  was  not  derived  from  society.  It  is  a  natural  right,  in- 
stinctive in  the  person.  Man,  Avhen  he  came  into  society, 
brouo-ht  it  with  him  in  all  its  freedom  and  broadest  sense.  It 
has  been  restricted  by  law  in  its  exercise  to  cases  of  necessity, 
but  cannot  be  altogether  denied.  If  it  were  possible  it  should 
not  be,  because,  as  now  restricted,  it  serves  to  protect  right 
against  wrong  in  emergencies  where  the  law  would  not  avail.^ 

And  it  is  the  duty  of  a  man  who  sees  a  felony  attempted 
by  violence  to  prevent  it  if  possible.  This  is  an  active  duty, 
and  hence  he  has  a  legal  right  to  use  the  means  necessary  to 
make  the  resistance  effectual.  If  A  be  unlawfully  assaulted 
by  B,  and  his  life  thereby  endangered,  he  may,  by  reason  of 
not  being  in  fault,  defend  it  even  to  the  extent  of  taking  the 
life  of  the  person  who  is  in  fault ;  and  as  the  right  is  a  natu- 
ral one,  rules  of  law  restricting  it  must,  in  order  that  it  may 
still  be  effective,  be  adapted  to  his  character  and  nature. 
He  may,  therefore,  act  upon  appearances,  if  he  acts  reason- 
ably ;  and   if  assailed  by  another,  and  he  believes,  and  has 

1  86  Kv.  440  (1887)  ;    s.c.   9  Am.  2  Stanley     v.    Connnonwealth,    86 

St.  Rep.  305;  6  S.  W.  Rep.  155.  Ky.  440  (1887)  ;  s.c.  8  Am.  St.  Rep. 

305;  6  S.  W.  Rep.  155. 


186  HOMICIDE.  [chap.  VII. 

reasonable  ground  to  believe,  that  his  life  is  thereby  en- 
dangered, he  may  even  take  life  in  its  apparent  necessary 
defence.  So  great,  however,  is  the  law's  regard  for  human 
life,  that  he  must  be  careful  and  not  violate  the  restriction 
that  law  and  society  have  placed  upon  this  right  of  self- 
defence  ;  to  wit,  he  must  act  from  necessity,  or  reasonable 
apparent  necessity,  and  not  be  in  fault.^ 

Not  only  may  the  person  assaulted  do  this,  but  another  may 
do  it  for  him.  This  other  person,  in  such  case,  steps  into  the 
place  of  the  assailed,  and  there  attaches  to  him  not  only  the 
rio-hts,  but  also  the  responsibilities,  of  the  one  whose  cause  he 
espouses.  If  the  life  of  such  person  be  in  immediate  danger, 
and  its  protection  requires  life  for  life,  or  if  such  danger  and 
necessity  be  reasonably  apparent,  then  the  volunteer  may 
defend  against  it,  even  to  the  extent  of  taking  life,  provided 
the  party  in  whose  defence  he  acts  was  not  in  fault.  He  in- 
terferes at  his  peril,  if  the  person  slain  was  not  in  fault.  A 
person  interposing,  if  he  be  a  stranger,  should  act  with  much 
caution.  This  necessarily  follows,  because  he  takes  the  place 
of  one  of  the  combatants,  and  can  only  do  for  him  what  he  had 
a  right  to  do,  under  the  circumstances,  in  defence  of  himself. 
Thus  if  A  unlawfully  assaults  B,  endangering  the  latter's  life, 
C  has  no  right,  because  he  may  come  upon  the  scene  of  conflict 
at  a  time  when,  during  its  progress,  A  is  in  danger,  to  kill  B. 
This  would  l)e'  murder  in  C\  just  as  it  would  be  in  A.  Any 
other  rule  could  not  be  tolerated.  The  innocent  cannot  be 
sacrificed  to  save  the  guilty.  This  would  be  paradoxical.  A 
volunteer  must  not  kill  in  behalf  of  one  in  fault.  This  would 
be  what  some  writers  have  termed  a  negligent  killing.  He 
may,  however,  do  so  for  one  not  in  fault,  if  the  impending 
danger  thus  brought  about  be  either  actual  or  apparent.  In 
other  words,  as  the  person  not  in  fault  may,  if  he  believes, 
and  has  reasonable  grounds  to  believe,  that  his  life  is  in  im- 
mediate danger,  defend  it  to  the  extent  of  taking  life,  so 
another  may  act  upon  the  like  appearances  as  to  such  danger, 
and  defend  it  for  him  to  the  same  extent.  .  If  a  felony  is 
attempted,  in  killing  the  attempter,  tln-ough  the  necessity  to 
save  an  innocent  person,  the  one  so  doing  is  in  the  condition 

1  Sec  Stanley  v.  Commonwealth,  8G  Ivy.  440  (1887)  ;   s.c.  9  Am.  St.  Rep. 
305 ;  G  S.  W.  Hep.  155. 


SEC.  169.]  DEFENCES    TO    HOMICIDE.  187 

of  se  defendo  in  defending  the  one  not  in  fault.  In  such  a 
case,  the  doctrine  of  self-defence  in  all  its  principles  extends 
to  the  accused,  just  as  it  would  if  the  felony  had  been  at- 
tempted upon  him,  or  as  it  would  apply  to  the  one  in  danger 
if  he  had  done  the  killing.^ 

Sec.  1G9.  Same  —  Reasonable  belief  in  iiiiniiuent  dan- 
ger.—  To  excuse  a  homicide  on  the  ground  of  self-defence  the 
jury  must  be  satisfied  that  the  defendant  killed  the  deceased 
when  he  was,  in  fact,  in  imminent  danger  of  losing  his  life,  or 
of  suffering  great  bodily  harm  at  the  hands  of  the  deceased.^ 
And  it  has  been  decided,  most  favorably  to  the  defendant,  that 
the  existence  of  the  reasonable  apprehension  of  actual  or 
apparent  danger  is  to  be  considered  from  the  standpoint  of 
the  defendant  at  the  time  of  the  homicide,  and  not  from  the 
standpoint  of  the  jury  in  the  light  of  the  facts  proved.^ 

By  imminent  danger  is  meant  immediate  danger,  such  as 
must  be  instantly  met,  and  cannot  be  guarded  against  by  call- 
ing upon  others  for  assistance,  or  upon  the  law  for  protection.* 
And  it  is  said  in  Territory  v.  Baker  ^  that  by  the  term  "  great 
bodily  harm  "  is  meant  great  personal  injury.  But  the  fear 
of  great  personal  injury  must  be  something  more  than  appre- 
hension, however  imminent,  of  a  mere  battery,  not  amounting 
to  felony.  In  order  to  justify  the  assault  and  the  slaying  of 
the  assailant,  within  the  meaning  of  this  section,  there  must 
be  an  apparent  design  on  the  part  of  such  assailant  to  either 
take  the  life  of  the  person  assailed,  or  the  infliction  of  some 
great  personal  injury,  amounting  to  a  felony,  if  carried  out 
and,  in  addition  thereto,  there  must  be  imminent  danger  of 
such  design  being  accomplished. 

The  question  whether,  under  all  the  circumstances,  there  are 
grounds  for  a  reasonable  belief  in  the  mind  of  the  slayer  that 
a  necessit}'  existed  for  taking  the  life  of  the  other,  is  one  for 

1  See  Stanley  i\  Commonwealtli,  86  Pa.  St.  205  (1861);  s.c.  80  Am. 
Ky.  440  (1887);  s.c.  9  Am.  St.  Rep.  Dec.  481 ;  Commonwealth  v.  Carey,  2 
.S05;  6  S.  W.  Rep.  155.  Brewst.   (Pa.)  404    (1870)  ;  Patillo  r. 

2  See  State  r;.  Vines,  1  Houst.  Cr.  State,  22  Tex.  App.  586  (1887);  sc 
Cas.  (Del.)  424  (1874);  State  r.  New-  3  S.  W.  Rep.  766:  Bell  r.  State.  20 
comb,  1    Houst.    Cr.    Cas.    (Del.)    66  Tex.  App.  445  (1886). 

(1858) ;  State  v.  Hollis,  1   Houst.  Cr.  ^  United   States   v.    Outerhridsf,   5 

Cas.  (Del.)  24  (1858),  Sawy.  C.  C.  620  (1868). 

3  Pond    I'.    People,    8  'Mich.    150  ^13  Pac.  Rep.  (N.  M.)  30  (1887). 
(1800)  ;  Logue  v.  Commonwealth,  38 


188  HOMICIDE.  [chap.  VII. 

the  determination  of  the  jury,  in  the  solution  of  wliich  the 
condition  of  both  the  parties  at  the  time  is  a  legitimate  sub- 
ject for  consideration.^  Regarding  the  legal  limitations  of  fear 
it  has  been  said^  that  the  homicide  is  to  be  viewed  (1)  from 
the  defendant's  standpoint;  (2)  from  the  standpoint  of  the 
jury,  with  all  the  facts  before  them ;  or  (3)  from  the  stand- 
point of  an  ideal  reasonable  man.  We  have  very  high 
authority  to  the  effect  that  unless  the  defendant's  fear  is 
"reasonable"  in  one  of  the  two  latter  senses,  it  will  not  avail ^ 
as  a  defence.  An  erroneous  idea  of  danger,  when  negligently 
adopted,  so  far  from  being  an  absolute  defence  to  an  indict- 
ment for  homicide,  perpetrated  under  the  influence  of  such 
fear,  would  surely  be  ground  for  a  verdict  of  manslaughter. 
On  the  other  hand,  it  is  thought  that  the  great  weight  of 
authority  now  is  to  the  effect  that  an  honest  non-negligent 
belief  of  danger  to  life  wall  be  an  excuse  to  a  homicide  com- 
mitted under  such  fear.  The  leading  case  on  this  topic,  that 
of  Levitt,*  was  that  of  a  man  suddenly  roused  from  his  sleep 
by  a  noise  in  the  kitchen,  and  supposing  a  burglar  to  be  in 
the  house,  killing  the  supposed  burglar,  who  was  in  fact 
only  a  visitor  of  one  of  the  servants.  This  was  held  to  be 
excusable  homicide.  In  his  criticism  of  the  case  Foster  says, 
that  if  Levitt  had  negligently  come  to  this  conclusion,  the 
cause  would  have  been  one  of  manslaughter.  This  case  has 
been  followed  by  many  others  in  which  what  may  be  called 
the  subjective  test  is  followed,  and  in  which  it  is  held 
that  the  reality  of  the  fear  is  to  be  determined  from  the  stand- 
point of  the  party  accused.  In  Pennsylvania,  in  particular,  this 
position  is  maintained  with  great  emphasis,  it  being  there  held 
that  the  issue  is,  not  what  the  jury,  with  all  the  evidence 
before  them,  would  believe,  or  what  would  an  ideal  i-easonal)le 
man  believe,  but  what  was  the  belief  of  the  defendant  him- 

1  Johnson    v.   State,    17    Ala.    G18  Lister  r.  State,  0  Tex.  App.  17  (1878); 

(1850);  State  r.  Bohan,  10  Kan.  28,  State  v.  Cain,  20  W.  Va.  G79  (1882). 
6.J  (1877)  ;  Cotton  t^.  State,  iU  Mi.ss.  ^  15  Cent.  L.  J.  2(5;',. 

504(1850);  Pfonier  i-.  People,  4  Tark.  ^  See    Coninionwealtli    v.    Ilillianl, 

Cr.  Cas.  (N.  Y.)  558  (1800) ;  State  v.  GO  Mass.  (2  Gray)  204   (1854)  ;  Wes- 

Harris,  IJones  (N.  C.)  L.  100  (185r,);  ley    v.    State,    37    Miss.    327    (1850); 

Goodall  V.  State,  1  Oreg.  333  (1801)  ;  State  v.  McGreer,  13  S.  C.  464  (1880). 
PC.   80    Am.    Dee.    30G  ;    Jackson    v.  •»  Fost.  294. 

State,  0  Baxt.  (Tenn.)   452    (1873)  ; 


SEC.  170.]  DEFENCES   TO    HOMICIDE,  189 

self  at  the  time.  If  he  negligently  believed  in  extreme  dan- 
ger, he  would  be  guilty  of  manslaughter ;  but  if  he  non- 
neoligently  came  to  this  belief,  and  killed  his  assailant  under 
this  conviction,  the  belief  being  that  this  was  the  only  way 
of  saving  his  own  life,  or  of  preventing  a  great  felony  on  his 
person,  then  he  should  be  acquitted.^ 

Sec  170.    Same  —  Grounds   for   belief  of  dang-er.  —  No 

general  rule,  applicable  to  all  cases,  can  be  laid  down  as  to 
what  is,  ,as  a  matter  of  law,  sufficient  ground  to  cause  a 
reasonable  belief  of  imminent  danger,  but  the  question  must 
depend,  to  a  great  degree,  upon  the  facts  and  circumstances 
of  each  x^irticular  case.  It  may  safely  be  said,  however,  that 
the  bare  fact  that  a  man  intends  to  commit  murder  or  otlier 
atrocious  felony,  without  any  overt  act  indicative  of  any  such 
intention,  will  not  excuse  the  killing  of  such  person  by  way 
of  prevention.  There  must  be  some  overt  act  indicative  of 
imminent  danger  at  the  time.^ 

To  justify  a  homicide  the  danger  need  not  be  actual,  if  the 
accused  acted  on  a  reasonable  appearance  and  belief  of  dan- 
ger. It  was  thus  held  in  Jordan  v.  State,^  where  the  defend- 
ant, finding  his  hogs  attacked  by  the  deceased's  dogs,  procured 
.  his  gun,  and  on  approaching  and  asking  deceased  if  he  was 
going  to  kill  defendant's  hogs,  was  answered  by  deceased: 
''No,  damn  you.  I'm  going  to  kill  you,"  and  saw  deceased  put 
his  hand  behind  him ;  but  after  the  deceased  Avas  shot  by  de- 
fendant it  was  found  that  he  had  no  weapon  except  a  shut 
pocket-knife,  and  had  no  hip  pocket.  In  the  somewhat  similar 
case  of  Guice  i\  State  ^  it  was  held  that  the  fact  of  deceased 
having  put  his  hand  to  his  hip,  as  though  to  draw  a  pistol, 
when  he  was  driving  by  a  store  and  saw  defendants  in  the 
doorway,  did  not  justify  their  following  tlie  wagon  and  firing 

1  Commonwealth  v.  Scibert  (Mass.),  (Teiin.)  :^76  (1872)  ;  Grainger  r.  State, 

Horr.    &    T.   Self    Def.    686    (1806).  5  Yerg.  (Tenn.)  4o9  (18oU) ;  Kex.  r. 

1  Am.  L.J.  (Ohio)  31;  Logue  v.  Com-  Scully,  1  Car.  &  P.  319  (1824)  ;    s.c. 

monwealth,   38   Pa.   St.    265    (1861);  12  Eng.  C.  L.  191 ;  Keg.  r.  Thurborn, 

Commonwealth   v.  Carey,    2    Brewst.  1  Den.  C.  C.  388  (1849). 

(Pa.)  404  (1870).     See  Teal  v.  State,  •-  See  Stoneham  r.  Commonwealth, 

22  Ga.  75  (1857);  Commonwealth  v.  25  Gratt.  (Va.)  887  (1874). 

Woodward,    102    Mass.    155    (1869)  ;  3  n  Tex.  App.  435  (1882). 

People  V.  Lamb,  2  Keyes  (N.  Y.)  360  ^  60  Miss.  714  (1883). 
(1866);  Williams  v.  State,  3   Heisk. 


190  HO:SIICIDE.  .  [chap.  VII. 

upon  him,  and  when  he  jumped  to  the  ground,  shooting  and 
stabbing  him  till  he  died,  because  the  apprehension  caused 
by  the  threatening  gesture  must  have  been  dissipated  ere  the 
killing. 

Sec.  171.  Same  —  Words  or  threats.  —  Mere  words  or 
threats  uttered  by  deceased,  however  abusive  or  violent,  with- 
out any  overt  act  or  other  indication  of  an  intent  to  follow 
up  the  words  with  an  assault  to  carry  out  the  threats,  are  not 
sufficient  grounds  for  the  reasonable  belief  of  imminent  dan- 
ger, which  is  necessary  to  sustain  the  plea  of  self-defence  on 
a  trial  for  criminal  homicide.^  Justice  Field  says,  in  the  case 
of  United  States  v.  Outerbridge,^  that  "  Mere  threats  against 
the  person  or  life  of  another,  without  any  attempt  at  execu- 
tion, will  not  justify  a  homicide,  nor  even  when  such  attempt 
at  execution  is  made,  unless  the  danger  is  so  imminent  as  not 
to  admit  of  delay  in  meeting  it,  on  the  part  of  the  assailed." 

To  justify  the  killing  the  danger  must  be  imminent  and 
immediate.  Thus,  in  a  trial  for  murder  on  an  indictment 
drawn  under  the  Texas  Penal  Code^  which  provides  that 
tlu'eats  afford  no  justification  for  homicide,  unless,  at  the 
time,  the  person  killed  manifested  by  some  act  then  done  an 
intention  to  execute  the  threat,  it  appeared  in  evidence  that_ 
the  defendant,  being  on  his  way  to  the  post-office  with  a 

1  Jackson    v.    State,    77    Ala.    18  Jackson  v.  State,  6  Baxt.  (Tenn.)  452 

(1884);  Taylor  v.  State,  48  Ala.  180  (1873);  Hippy  i'.  State,  2  Head  (Tenn.) 

(1872);    Mize  r.   State,  36   Ark.  653  217(1858);   Williams  \.  State,  ZlW\%k. 

(1880)  ;    People    v.    Tamkin,  62    Cal.  (Tenn.)    376   (1872) ;    s.c.    1    Gr.    Or. 

4G8   (1882);    People    v.   Scoggins,   37  Rep.  255;  Wall.  i-.  State,  18  Tex.  682 

Cal.  676  (1869);  People  v.  Lombard,  (1857);  s.c.  70  Am.  Dec.  302;  Lynch 

17  Cal.  316   (1801)  ;  United  States  r.  v.  State,'2\  Tex.  A  pp.  350  (1888)  ;  s.c. 

Knowlton,  3  Dak.  58  (1882) ,  United  5  Am.  St.  Rep.  888  ;  6  S.  W.  Kep,  190; 

States  I'.  Leighton,  3  Dak.  29  (1882);  Penland   v.  State,   19  Tex.   App.  365 

s.c.   13  N.  W.   Rep.  347;    Roberts   r.  (1886);    Peck  v.   State,  5  Tex.   App. 

State,    65    Ga.   430    (1880);    Malone-  611(1879);  Williams  f.  State,  2  Tex. 

7'.  State,  49  Ga.  210  (1873);  Gilmore  App.   271    (1878);    United    States    v. 

r.  People,  124  111.  380  (1888)  ;  s.c.  15  Outerbridge,  5  Sawy.C.  C.  620  (1868)  ; 

X.  I'l  Rep.  758;  Parsons  v.  Common-  United  States  v.  Wiltberger,  3  Wasli. 

wealth,  78  Ky.  102  (1879);  Edwards  C.  C.  515  (1819).    See  Lander  r.  State, 

/•.  State,  47  Miss.  581  (1873)  ;  State  v.  12  Tex.  462  (1854)  ;  Johnson  v.  State, 

Elliott,   90    Mo.    350    (1886)  ;    s.c.   2  27  Tex.  758  (1865)  ;  Sims  v.  State,  9 

S.  W.  Rep.  411;    State  v.  Rider,  90  Tex.  App.  586  (1881).    Compare  lAy en 

Mo.  54  (1886)  ;  State  v.  Harris,  73  Mo.  r.  State,  33  Tex.  525  (1870). 

287    (1880);    Anderson   v.   Territory,  2  5  Sawy.  C.  C.  620,  625  (1868). 

(N.  M.)  13  Pac.  Rep.  21  (1887)  ;  State  ^  Texas  Penal  Code,  art.  608. 
V.  Merrill,  2  Dev.  (-X.  C.)  L.  209  (1829)  ; 


SEC.  171.]  DEFENCES   TO   HOMICIDE.  191 

double-barrelled  gun,  was  met  by  one  with  wliom  he  had  had 
trouble.  In  reply  to  a  question  by  the  prisoner,  ■  deceased 
said,  "  If  I  get  my  gun  I  will  show  you  what  I  am  in  a  hurry 
for."  His  gun  was  in  the  house  forty  yards  away.  Defendant 
shot  him,  and  at  the  trial  asked  the  court  to  charge  that  if 
the  deceased  was  advancing  towards  his  house  to  get  his  gun 
to  kill  the  defendant,  or  to  do  him  some  serious  injury,  he 
had  the  right  to  act  in  advance  and  make  the  attack.  The 
court  charged  that  the  threat,  would  furnish  no  justification 
unless  the  deceased  by  some  act  done  at  the  time  manifested 
"an  immediate  intention  to  execute  his  threats,"  and  this 
instruction  was  upheld  on  appeal.^ 

In  Penland's  Case,^  it  is  satd  that  "  the  belief  that  a  per- 
son designs  to  kill  me  will  not  prevent  my  killing  him  from 
being  murder  unless  he  is  making  some  attempt  to  execute 
his  design,  or  at  least  is  in  apparent  situation  to  do  so,  and 
thereby  induces  me  reasonably  to  think  that  he  intends  to 
do  it  immediately.^  No  contingent  necessity  will  avail.'* 
Past  threats  or  conduct  of  the  deceased,  however  violent, 
will  not  excuse  a  homicide  without  sufficient  present  demon- 
stration to  authorize  the  belief  that  the  deadly  purpose  then 
exists,  and  the  fear  that  it  will  then  be  executed.  It  is  said, 
in  People  v.  Westlake,^  that  there  must  be  such  a  demonstra- 
tion of  an  intention  to  execute  the  threat  as  to  induce  a  rea- 
sonable belief  that  the  party  threatened  will  lose  his  life  or 
suffer  serious  bodily  injury  unless  he  immediately  defends 
himself  against  the  attack  of  his  adversary .^  In  State  v. 
Home,"  the  court  say,  "there  must  not  only  be  reasonable 
ground  to  believe,  but  the  purpose  to  execute  the  design 
must  be  accompanied  by  some  attempt  to  execute  it,  or  the 
person  must  at  least  be  in  an  apparent  situation  to  do  so,  and 
so  induce  a  reasonable  belief  that  he  intends  to  do  it  imme- 
diately.^ 

1  Lynch  r.  State,  24  Tex.  App.  350  Tex.   App.  547    (188G)  ;    s.c.  53  Am. 

(1888);    s.c.  5  Am.  St.  Rep.  888;   6  Rep.  389;  Holt  v.  State,  9  Tex.  App. 

S.  W.  Rep.  190.  571  (1881). 

-'  19  Tex.  App.  365  (1886).  a  G2  Cal.  303  (1882). 

3  State  r.  Scott,  4  Ired.  (X.  C.)  L.  «  People    c.    Tamkin,   G2    Cal.  468 
409  (1844).  (1882). 

4  See  Lander  v.  State,  12  Tex.  462  '  9  Kan.  119  (1872). 

(1854).     See  also  Hinton  v.  State,  24  »  See  State  v.  Clifford,  58  Wis.  113 

Tex.  454  (1859)  ;  Weaver  r.  State,  19     (1883) ;  s.c.  16  N.  W.  Rep.  25. 


192  HOMICIDE.  [chap.  VII. 

Sec.  172.  Same  —  Former  acts  or  attempts.  —  A  homi- 
cide is  not  excusable  on  the  ground  of  self-defence,  because 
of  previous  hostile  acts  or  injuries,  however  violent,  committed 
or  inflicted  by  the  person  killed,  without  any  overt  act  show- 
ing danger  to  the  slayer  at  the  time  of  the  killing.^  Thus 
the  killing  will  not  be  excused  by  proof  that  the  deceased  had 
lain  in  wait  and  shot  at  the  defendant  at  some  time  previous 
to  the  killing.2  But  where  the  acts  of  the  person  killed,  his 
character  and  antecedent  conduct,  and  the  circumstances  of 
the  meeting,  afford  reasonable  ground  for  belief  that  to  kill 
a  person  who  has  previously  assaulted  the  slayer  is  the  only 
mode  of  protection,  the  homicide  is  excusable.^ 

The  plea  of  self-defence  cannot  be  interposed,  and  the 
homicide  will  not  be  justifiable,  where  the  evidence  shows 
that  the  prisoner  was  the  aggressor,  or  that  he  acted  in  retali- 
ation.* Thus  it  is  said  in  Farris  v.  Commonwealth,^  that 
where  the  accused  leaves  the  scene  of  the  quarrel,  and  having 
obtained  a  shot-gun  at  the  family  residence,  returns,  and 
shoots  the  deceased,  the  court  will  not  reverse  a  verdict  of 
manslaughter,  the  right  of  self-defence  not  authorizing  one 
to  hunt  up  his  adversary,  and  slay  him  under  the  idea  that  it 
is  necessary  to  save  his  own  life. 

Sec.  173.  Same  —  Conspiracy.  —  A  conspiracy  to  take 
life,  even  coupled  with  a  previous  unsuccessful  attem]3t  to 
carry  it  into  effect,  and  knowledge  thereof  by  the  intended 
victim,  will  not  constitute  sufficient  ground  for  a  reasonable 
belief  of  imminent  danger  to  justify  the  killing  of  the  conspir- 
ators, or  one  of  them,  in  the  absence  of  anything  going  to 
sliow  an  intention  to  carry  out  the  conspiracy  at  the  time  of 
the  liomicide.*"  In  such  a  case  the  declarations  of  a  co-con- 
spirator with  deceased  in  seeking  to  kill  the  defendant,  made 

1  (iladden    v.    State,    12    Fla.    [^^2  3  (\\(,^    ,._   Conininnwoaltli,  80   Ky. 

(180!));  Cahill  r.  IVople,  UKi  111.  ()21  ;^2  (1882). 

(188:5);  Farris  r.  Commonwealth  (Ky.),  ■»  People  r.  McLend,  1    Hill  (N.  V.) 

1  S.   W.  Rep.  729  (1880);   People  r.  .177    (1841);   s.c.  25  Wend.   (X.    V.) 

McLeod,  1   Hill  (N.  Y.)  377  (1841);  483;  87  Am.  Dec.  328. 

s.c.  25    Weiid,   (N.  Y.)  483;    37  Am.  •"'  1  S.  W.  Kep.  (Ky.)  729  (1880). 

Dec.  328;    Jackson  r.  State,  (i   Haxt.  "  Henderson    v.   State,    77   Ala.   77 

(Tenn.)    452    (1873).      See    Oder   ;•.  (1884)  ;  Simmons  o.  State,  79  Ga.  696 

Commonwealth,  80  Ky.  32  (1882).  (1887)  ;  s.c.  4  S.  E.  Rep.  894. 

-  Parsons  v.  Commonwealth,  78  Ky. 
102  (1879). 


SEC.  174.] 


DEFENCES   TO   HOMICIDE. 


193 


some    time    after  the   homicide,  are    not  res  gestce^  and  are 
therefore  not  inadmissible.^ 

Sec.  174.  Same  —  Gestures  and  menaces.  —  Xo  mere  ges- 
tures or  menaces  which  do  not  constitute  an  assault,  however 
irritating  or  provoking  they  may  be,  will  ordinarily  excuse  a 
homicide,'-^  unless  they  show  unequivocally  an  intent  of  the 
party  making  them  to  use  a  deadly  weapon  against  the 
slayer.^  Thus  in  Wortham  v.  State  *  it  is  said  that  the  mere 
raising  of  a  stick,  though  the  stick  be  capable  of  producing 
death,  may  not  be  sufficient  to  justify  killing  the  assaulting 
party.  But  in  the  case  of  State  v.  St.  Geme,^  where  the 
defendant  was  on  a  trial  for  murder,  proof  that  after  the 
deceased  had  threatened  the  accused  with  great  bodily  harm, 
they  met  without  design,  and  the  motions  of  the  deceased 
gave  the  accused  reasonable  ground  to  believe  that  he  was 
about  to  execute  the  threat,  and  the  killing  was  done  under 


1  Martin  v.  State,  25  Tex.  App.  557 
(1888)  ;  s.c.  8  S.  W.  Rep.  682 ;  Tillery 
V.  State,  24  Te.x.  App.  251  (1888)  ;  s.c. 
5  Am.  St.  Rep.  882  ;  5  S.  W.  Rep.  842. 
See  State  v.  Glidden,  55  Conn.  46 
(1887);  s.c.  3  Am.  St.  Rep.  23;  8 
Atl.  Rep.  890;  Spies  v.  People,  122 
111.  1  (1887)  ;  s.c.  3  Am.  St.  Rep.  320; 
9  Cr.  L.  Mag.  82!) ;  6  Am.  Cr.  Rep. 
570;  12  jST.  E.  Rep.  865;  17  N.  E. 
Rep.  898. 

2  Lewis  r.  State,  51  Ala.  1  (1874)  ; 
Wortham  i-.  State,  70  Ga.  336  (1883)  ; 
Roberts  v.  State,  05  Ga.  430  (1880)  ; 
Malone  v.  State,  49  Ga.  210  (1873)  ; 
State  V.  Elliott,  90  Mo.  350  (1886)  ; 
s.c.  2  S.  W.  Rep.  411;  United  States 
V.  Outerbridge,  5  Sawy.  C.  C.  620 
(1868). 

In  State  v.  Elliott,  90  IMo.  350 
(1886);  s.c.  2  S.  W,  Rep.  411,  the 
court  instructed  the  jury  that,  "  When 
a  person  strikes  another  with  a  deadly 
weapon,  in  a  manner  calculated  or 
likely  to  produce  death,  no  words  of 
reproach  or  gestures,  liowever  irritat- 
ing or  provoking,  amount  to  or  con- 
stitute any  justification  or  excuse  in 
law  for  the  killing,  if  death  results 
from  such  striking."  A  criticism 
being  made  upon  the  use  of  the  word 

13 


"gestures"  in  the  instruction,  the 
court  said:  "Wej:;annot  see  that  the 
use  of  this  word,  as  applied  to  the 
facts  in  evidence,  was  in  any  manner 
calculated  to  mislead  a  jury  of  ordi- 
nary intelligence;  and,  besides  this, 
it  is  in  accord  with  what  is  ruled  in 
the  cases  of  State  v.  Brown,  64  Mo. 
373  (1877),  and  State  v.  Starr,  38  Mo. 
271  (1866).  In  the  last  case  cited  it 
is  said:  'When  there  is  lawful  provo- 
cation, the  law,  out  of  indulgence  to 
human  frailty,  will  reduce  the  killing 
from  the  crime  of  murder  to  man- 
slaughter ;  but  neither  words  of  re- 
proach, how  grievous  soever,  nor 
indecent,  provoking  actions  or  ges- 
tures, however  much  calculated  to 
excite  indignation  or  arouse  the  pas- 
sions, are  sufficient  to  free  the  party 
killing  from  the  guilt  of  murder.'  " 
3  De  Arman  v.  State,  71  Ala.  351 

(1882)  ;    Bailey  v.  State,  70  Ga.  017 

(1883)  ;  State  v.  St.  Geme,  31  La.  An. 
303  (1879) ;  Guice  v.  State,  60  Miss. 
714  (1883)  ;  Bang  v.  State,  60  Miss. 
571  (1882)  ;  Tillery  v.  State,  24  Tex. 
App.  251  (1888);  s.c.  5  Am.  St.  Rep. 
883  ;  5  S.  W.  Rep.  842. 

*  70  Ga.  336  (1883). 
6  31  La.  An.  302  (1879). 


194  HOMICIDE.  [chap.  VII. 

the  belief  that  it  was  necessary  in  self-protection,  this  was 
held  to  justify  an  acquittal. 

In  De  Arman  v.  State  ^  the  defendant  addressed  the  de- 
ceased in  a  peaceable  manner,  and  the  latter  replied  angrily 
and  insultingly,  and  approached  him  with  his  hand  on  his 
pistol  pocket  as  though  to  draw  and  fire.  The  defendant  was 
held  to  be  justified  in  firing  first,  though  it  subsequently 
appeared  that  the  deceased  had  no  weapon.  In  Tillery  v. 
State  2  there  was  evidence  to  show  that  deceased  bore  enmity 
against  defendant,  and  had  threatened  to  kill  him.  They  met 
while  riding,  and  a  controversy  arose,  when  deceased  turned  in 
his  saddle  towards  defendant,  and  placed  his  right  hand  to  his 
right  side  as  if  to  draw  a  pistol,  whereupon  defendant  shot 
him.  A  pistol  was  found  on  the  body  of  the  deceased  on  the 
right  side.  The  court  lield  that  the  issue  of  self-defence  was 
properly  submitted  to  the  jui-y. 

Sec.  175.  Same  —  Possession  of  weapons.  —  The  fact 
that  a  person  has  deadly  weapons,  or  even  that  lie  presents 
them,  is  not  an 'excuse  for  killing  him  unless  he  manifestly 
intends  to  use  them  against  the  slayei- ;  ^  but  where  such  an 
intention  plainly  appears,  jt  affords  ground  for  reasonable 
belief  of  imminent  danger  which  will  justify  the  killing.* 
Thus  where  on  a  trial  for  murder  it  appeared  that  the  only 
unusual  danger  to  defendant  was  in  the  fact  that  deceased 
had  a  stone  in  his  hand,  an  instruction  that  unless  the  stone 
was  a  dangerous  weapon,  or,  to  a  reasonable  person  in  the  de- 
fendant's position,  appeared  to  be,  he  was  not  justified  in 
striking  the  fatal  blow,  was  held  to  be  correct.^ 

But  if  a  gun  be  pointed  at  one  in  a  threatening  manner, 
under  such  circumstances  as  to  induce  a  reasonable  belief 
that  it  is  loaded  and  will  be  discharged,  and  thereby  produce 

1  71  Ala.  051  (1882;.  *  People  v.  Anderson,  44    Cal.    G5 

2  -24  Tex.  App.  251  (1888)  ;  s.c.  5  (1872)  ;  People  v.  Payne,  8  Cal.  .S41 
Am.  St.  Kep.  883;   5  S.  W.  Rep.  842.     (1857)  ;  State  v.  Kliodes,  1  Iloust.  Cr. 

8  Roberts     v.    State,    (55    Ga.    430  Gas.  (Del.)  470  (1877)  ;  State ».  Potter, 

(1880)  ;   State  v.   Brittain,  89  N.  C.  13  Kan.  414  (1874)  ;  State  c.  Mullen, 

481   (1883)  ;  Goodall  v.  State,  1  Oreg.  14  La.  An.  577  (1859)  ;  Lamarr.  State, 

3:!3    (1801);  s.c.    80    Am.    Dee.   390;  04  Miss.  428  (1880);  s.c.  2  So.  Rep. 

Bode  r.  State,  0  Tex.  App.  424  (1879).  12;     State    r.    Eaton,    75    Mo,     586 

See    State    r.    Maliaii,   08    Iowa,    304  (1882). 

(1880);  8.C.  27  N.  W.  Rep.  249.  &  State    v.    Malian,   08    Iowa,   304 

(1880)  ;  s.c.  27  X.  W.  Rep.  249. 


,SEC.  175.]  DEFENCES   TO   HOMICIDE.  195 

death  or  inflict  great  boclily  injuiy  on  the  person  threatened, 
such  person  will  be  justified  in  using  whatever  force  may  be 
necessary  to  avert  that  apparent  danger ;  and  his  right  is  not 
affected  by  the  fact  that  the  gun  was  not  loaded.^  Where 
the  deceased  had  repeatedly  threatened  to  shoot  the  prisoner, 
and  the  prisoner  kills  deceased  in  the  act  of  drawing  a  pistol 
upon  him,  instantly,  where  he  has  no  other  probable  means 
of  protecting  himself  or  getting  out  of  the  way,  it  is  a  cause 
of  justifiable  homicide .^ 

It  is  thought  that  the  real  intention  of  the  deceased  is 
immaterial,  if  from  the  nature  of  the  attack,  the  circumstances 
surrounding  the  parties,  and  the  conduct  of  the  deceased, 
there  is  reasonable  ground  to  believe  that  there  is  a  design 
to  destroy  life,  the  killing  of  the  assailant  will  be  justifiable  ^ 
Thus  there  being  evidence  that  the  deceased  was  a  turbulent 
character,  that  the  defendant  had  had  a  quarrel  with  him,  and 
that  the  deceased  had  seized  his  pistol  when  the  homicide  was 
committed,  it  was  held  that  the  defendant  was  entitled  to  an 
instruction  that  he  was  justified  in  killing  the  deceased  if  he 
had  reasonable  ground  to  apprehend  immediate  danger,  though 
in  fact  the  deceased  intended  no  harm.*  Where  it  appeared  in 
evidence  that  the  title  to  a  piece  of  land  being  in  dispute,  the 
defendant  placed  upon  the  premises  some  posts,  intending  to 
build  a  fence,  and  the  deceased  went  with  the  other  claimant 
of  the  land  and  began  to  remove  the  posts,  being  armed  with 
a  pistol,  which  he  drew  upon  defendant,  who  then  shot  him, 
the  homicide  was  held  to  be  justifiable.^  In  Lamar  v.  State  ^' 
the  defendant,  with  several  others,  created  a  disturbance  in  a 
town,  and  finally  shot  a  man,  after  which  they  retired  to  a 
place  a  hundred  yards  from  the  business  portion  of  the  town, 
where  they  amused  themselves  firing  off  their  pistols  •  the 
deceased   and   other   citizens   armed   themselves,  and   went 


1  People  V.  Anderson,   44    Cal.  05  s.c.  2  So.  Rep.  12,  State  v.  Eaton,  75 

(1872);  State  v.  Mullen,   14  La.  An.  Mo.  586     1882s,  Shorter  r.  People,  2 

577  (1859).  N.  Y.  193  (1849;,   s.c.  61  Am.  Dec. 

■^  State  r.  Rhodes,  1  Houst.  Cr.  Cas.  286;    Goodall   v.    State,    1   Greg.  33a 

(Del.)  476  (1877).  1861;  ;  s.c.  80  Am.  Dec.  396. 

3  People  V.  Payne,  8  Cal.  341  (1857) ;  *  State  r.  Eaton,  75  Mo.  586  ("1882). 

Commonwealth    r.  Selfridge  (Mass.),  5  j>eople  r.  Payne,  8  Cal.341  (1857;. 

Horr.     &    T.     Self   Def.    1     (,1806;;  <■■  64    Miss.  428  (1886)  ;    s.c.  2  So. 

Lamar  v.  State,  64  Miss.  428  (188G;  ;  Rep.  12. 


196  HOMICIDE.  [chap.  VII. 

where  tlie  defendant  and  his  companions  were,  and  tokl  them 
not  to  come  back  and  create  further  disturbance ;  and  the 
deceased  was  killed  by  the  defendant.  The  court  held  that  a 
refusal  to  charge  that  if  the  deceased  and  others  so  exhibited 
their  weapons  during  the  interview  as  to  raise  a  reasonable  . 
apprehension  in  the  mind  of  the  defendant  that  they  were 
about  to  make  a  deadly  assault  upon  him,  he  should  be  ac- 
quitted, was  a  reversible  error. 

Sec.  176.  Same  —  Assault.  —  If  an  assault  is  made  undet 
circumstances  which  create  a  just  apprehension  of  imminent 
danger  of  death  or  great  bodily  harm  to  another,  it  is  ade- 
quate ground  for  that  reasonable  fear  of  immediate  danger 
which  will  justif}-  the  killing  of  the  assailant;^  but  an  assault 
without  a  weapon,  apjiarently  causing  peril  of  a  mere  indig- 
nity to  the  person,  or  of  a  mere  battery,  from  which  great  bodily 
harm  cannot  reasonably  be  apprehended,  will  not  excuse  a 
resistance  so  violent  as  to  take  the  life  of  the  assailant,  even 
though  such  peril  cannot  be  escaped  by  retreat,  or  tlie  danger 
may  be  thereby  increased.^  Thus  one  pursued  and  violently 
threatened  by  an  assailant  with  his  fists,  although  being  at 
the  time  crippled  by  a  fracture  of  his  ribs,  will  not  be  justi- 
fied in  the  use  of  a  concealed  deadly  weapon,  resulting  in  the 
death  of  the  assailant.^  But  in  Commonwealth  v.  Crawford,* 
where  one  of  the  judges  of  election  being  violently  assaulted 

1  See   Carroll  v.  State,  23  Ala.  28  State    r.    Middleliam,    62    Iowa,   150 

(1853)  ;  s.c.  58  Am.  Dec.  282  ;  People  (1883)  ;  s.c.  17  N.  W.  Kep.  44G;  State 

V.  Scott,  09  Cal.  69    (1886);    s.c.    10  v.    Kennedy,    20    Iowa,   569    (1866); 

Pac.  Rep.  188  ;  Murpliy  v.  People,  37  Slate  v.  Thompson,  0  Iowa,  188  (1859); 

111.  447  (1885)  ;  De  Forest  v.  State,  21  s.c.  74  Am.  Deo.  342  ;  State  v.  Rogers, 

Ind.   23    (1863);    State   v.  Peru/o,   70  18  Kan.  78   (1877);  s.c.  26  Am.  Rep. 

Iowa,  657   (1886);  s.c.  8  Or.  L.  Mag.  754;  Ex  parte  Hamilton,  65  Miss.  147 

156;    28  N.  W.  Rep.  457;    Common-  (1887);  s.c.  3  So.  Rep.  241;  Hail  v. 

wealth  f.  Riley,  1  Thacli.  C.  C.  (Mass.)  State  (Miss.),  I  So.  Rep.  351   (1887) 

471(1837);  Commonwealth  r.  Craw-  State    v.    Rider,   90    Mo.    54    (1886) 

ford,  8  Phila.  (Pa.)  490  (1870)  ;  Cope-  Shorter  v.  People,  2  N.  Y.  193  (1849) 

land  V.  State,  7  Humph.   (Tenn.)  479  s.c.    51    Am.    Dec.   28(5  ;    Stewart    v. 

(1846);    Alexander  v.   Stale,  25  Tex.  State,  1  Ohio  St.  66  (1852)  ;  Common- 

App.  260  (1888)  ;  s.c.  8  Am.  St.  Rep.  wealth  v.  Drum,  58  Pa.  St.  9  (1868)  ; 

438  ;  7  S.  ^Y.  Rep.  867.  Isaacs  v.  State,  25  Tex.  174  (I860)  ; 

-  See  Myers  v.  State,  62  Ala.  599  Honesty    v.    Commonwealth,    81    Va. 

(1878)  ;  Ei"land  r.  State,  52  Ala.  322  283  (1886). 

(1875)  ;     Duncan    v.   State,   49   Ark.  3  gtate  r.  Thompson,  9  Iowa,  188 

643   (1887)  ;    s.c.  6  S.  W.  Rep.  164;  (1859)  ;  s.c.  74  Am.  Dec.  342. 
Davis  V.  People,  88  III.  350  (1878)  ;  *  8  Phila.  (Pa.)  490  (1870), 


SEC.  176.]  DEFENCES   TO   HOMICIDE,  197 

by  persons  who  broke  into  the  room,  where  the  board  was 
assembled,  shot  one  of  his  assailants  who  was  in  the  act  of 
hurling  a  missile  at  him,  it  was  held  justifiable  homicide. 
And  in  Commonwealth  v.  Riley,^  where  in  an  affray  A 
knocked  down  and  beat  B,  and  C,  a  bystander,  believing  that 
the  life  of  B  was  in  danger,  gave  him  a  knife  to  defend  him- 
self to  prevent  further  mischief,  and  B  killed  A  with  a  knife, 
it  was  held  that  C  was  justified  in  giving  B  the  knife. 

It  is  thought  that  if  a  person  who  is  going  liis  own  road,  in 
a  laudable  pursuit,  and  is  assailed  in  that  road  b}"  another, 
with  a  hickory  stick  of  dangerous  charactei,  and  thereupon 
slays  his  adversary  with  a  knife,  this  is  homicide  in  self- 
defence.^  But  where  the  defendant  insulted  and  threatened 
the  deceased,  and,  when  warned  against  approaching,  took 
hold  of  him,,  whereupon  the  deceased  struck  defendant  lightly 
with  a  lio-ht  cane,  and  the  defendant  tlien  struck  deceased  a 
murderous  blow,  it  was  held  that  there  was  no  legal  provo- 
cation, and  that  the  homicide  was  murder.^  In  a  case  where 
there  was  evidence  that  a  few  days  before  the  homicide  the 
deceased  had  threatened  to  kill  the  defendant;  that  such 
threat  had  been  communicated  to  him  ;  that  the  general  repu- 
tation of  the  deceased  was  that  of  a  dangerous  man,  likely 
to  execute  the  threat;  that  the  deceased,  who  was  a  power- 
ful man,  violently  assaulted  the  defendant  with  a  stick  ;  and 
that  the  defendant  then  begfan  shootino-  at  him  while  he  was 
continuing  the  assault,  proof  of  such  facts  was  held  to 
establish  a  case  of  self-defence.*  And  where  a  man,  on  return- 
ing to  his  own  house,  finds  himself  barred  out  therefrom  by 
another,  and  then  repeatedl}^  demands  and  is  denied  admis- 
sion, he  has  a  legal  right  to  break  in  the  door ;  and  if  he 
encounters  resistance  on  thus  entering,  and  be  first  stricken 
by  the  unlawful  occupant  with  a  deadly  weapon,  and  then 
meeting  force  with  force,  he  takes  the  life  of  such  occupant, 
such  killing  would  seem  to  be  excusable  homicide,  committed 
in  self-defence.^ 


1  Thach.  C.  C.  (Mass.)  471  (1837).  *  Alexander  v.  State,  25  Tex.  App. 

2  Copcland    r.    State,    7     Humph.  2G0  (1888)  ;  s.c  8  Am   St.  Rep.  438 ; 
(Tenii.)  479  (1846).  7  S.  W.  Rep.  867. 

3  Honesty    v.    Commonwealth,   81  ''  l>e  Forest   v.    State,   21   Ind.   23 
Va.  283  (1886).  (1863). 


198  HOMICIDE.  [chap.  VII. 

A  false  statement  made  by  a  prisoner  as  to  the  condition 
of  his  weapon  will  not  prevent  him  from  setting  up  the  plea 
of  self-defence,  should  subsequent  events  and  circumstances 
call  for  and  justify  such  use.  Thus  where  a  defendant, 
engaged  in  an  altercation  with  H.,  on  being  approached  by 
the  latter  with  a  pitchfork,  drew  his  revolver  and  warned 
him  not  to  approach.  H.  thereupon  stopped,  and  the  defend- 
ant drew  away,  but  after  going  a  short  distance  the  defendant 
stopped,  and  stated  to  H.  that  he  had  scared  him  with  an 
empty  revolver.  H.  then  assaulted  the  defendant,  who  shot 
and  killed  him.  The  court  held  that  the  defendant  was  not 
precluded  from  availing  himself  of  the  plea  of  self-defence 
by  reason  of  his  statement  that  the  revolver  was  unloaded, 
although  deceased  was  induced  thereby  to  make  the  assault, 
unless  his  purpose  in  making  the  statement  was  to  create  an 
excuse  for  taking  the  life  of  the  deceased.^ 

Sec.   177.    Same  —  Assault    in    lieat    of    passion.  —  The 

doctrine  that  where  a  person  attacked  has  reasonable  cause  to 
believe  that  his  assailant  is  approaching  him  with  intent  to 
take  his  life,  or  to  commit  some  aggravated  felony  on  his 
person,  and  that  the  danger  is  imminent,  he  may  kill  his  assail- 
ant without  retreating,  provided  he  has  first  done  all  he 
could  to  avoid  the  difficulty,  if  a  rule  at  law  at  all  is  not 
applicable  to  a  homicide  committed  in  resisting  an  assault 
made  in  the  heat  of  passion,  suddenly  aroused  in  the  course 
of  a  quarrel,  by  one  man  upon  another,  the  relations  between 
whom  had  theretofore  been  of  a  friendl}-  cliaracter.^ 

At  the  trial  of  an  infornration  for  murder,  the  evidence 
showed  that  the  homicide  occurred  at  a  gaml)ling-table,  with  ref- 
erence to  money  placed  in  the  gambling-pot  by  defendant  and 
subsequently  withdrawii ;  that  deceased  demanded  of  tlie  de- 
fendant to  return  it,  having  at  the  time  a  knife  in  his  hand ;  and 
that  the  defendant  drew  a  pistol  which  the  deceased  seized,  and 
in  the  struggle  which  ensued  deceased  was  shot,  whether  by 
design  or  accident  was  uncertain.  The  court  instructed  the 
jury  that  if  the  defendant  had  agreed  to  return  the  money  and 


^  State    V.   Perigo,   70    Iowa,   657  -  Duncan    >\    State,   49    Ark.   543 

ri886)  ;    s.c.  8  Cr.  L.  Mag.    luG  ;  28     (1887)  ;  s.c.  G  S.  W.  Kcp.  104. 
N.  W.  Kep.  457. 


SEC.  178.]  DEFENCES   TO    HOMICIDE.  199 

could  have  avoided  any  necessity  for  killing  the  deceased  by 
doing  so,  and  by  so  doing  he  would  have  been  in  no  danger  to 
life  or  of  bodily  harm  from  deceased,  and  yet,  with  full 
knowledge  of  this  situation,  and  after  lie  had  agreed  to  return 
the  money,  by  doing  which  all  danger  to  him  would  have 
been  avoided  with  safety  to  himself,  he  shot  the  deceased  in 
a  cool  and  deliberate  manner,  then  such  killing  would  be 
murder  ;  and  that  if  defendant,  prior  to  the  fatal  shot,  if  he 
Ihed  it,  could  have  avoided  the  necessity  of  killing  deceased 
by  replacing  the  money,  if  he  agreed  to  do  so,  it  was  his  duty 
to  do  so,  and  as  between  complying  with  such  promise  and 
slaying  deceased,  it  was  his  duty  to  adopt  that  course  which 
would  have  avoided  any  occasion  for  tiie  shooting,  if  such 
course  could  be  pursued  with  safety  to  the  defendant.  These 
instructions  were  erroneous  because  the  withdrawing  of  the 
money  by  defendant,  or  refusing  to  replace  it,  even  after  a 
promise  so  to  do,  would  not  justify  an}'  act  or  demonstration 
of  hostility  on  the  part  of  the  deceased,  or  modify  defendant's 
right  to  repel  such  act  or  demonstration  by  adequate  and 
proper  means. ^ 

Sec.  178.  Same — Provoking  assault.  —  Where  one  ille- 
gally provokes  an  assault,  or  presses  another  into  combat,  he 
will  not  be  justified  in  killing  such  other,  no  matter  to  what 
extremities  he  may  be  reduced.^  Thus  where  the  accused,  a 
tenant  of  the  deceased,  had  habitually  annoyed  giils  passing 
by  his  shop,  and  after  the  deceased  had  thrown  his  tools  out 
of  the  shop,  had  drawn  a  dagger  on  him  while  he,  the  de- 
ceased, was  tacking  a  cloth  on  the  window,  and  having  made 
a  declaration  in  broken  English  relative  to  the  transaction  con- 
taining the  word  "kill,"  a  few  hours  afterwards  approached 
the  deceased  with  abusive  epithets,  shook  his  fists  in  his 
face  until  deceased  struck  him  with  a  stick,  and,  after  retreat- 
ing about  twenty  feet,  returned  upon  the  deceased  with  a 
drawn  dagger,  and  upon  being  knocked  upon  his  knees  by  a 
second  and  a  third  blow  of  the  stick,  collared  the  deceased 
and  stabbed  him,  of  which  stab  he  died,  the  homicide  was 
held  not  to  be  justified  on  the  ground  of  self-defence,  that  it 

J  People  V.  Scott,  69  Cal.  69  (1886);  2  gee  ante,  §  95. 

s.c.  10  Pac.  Rep.  188. 


200  •  HOMICIDE.  [chap.  VII. 

was  at  least  manslaughter,  and,  if  manslaughter,  from  its 
other  circumstances  it  became,  under  the  Texas  Penal  Code, 
murder  because  of  the  use  of  the  dagger.^ 

What  is  sufficient  provocation  to  justify  a  homicide  always 
depends  upon  the  particular  circumstances  of  the  case  and 
the  surroundings  of  the  parties.  In  Ex  parte  Hamilton,^  H. 
and  E.  were  charged  with  the  murder  of  G.,  and  it  appeared 
that  some  weeks  before,  G.  had  assailed  H.'s  character  in  his 
paper ;  that  on  the  night  of  the  homicide,  just  before  G.'s 
train  returned,  H.  and  E.  drove  to  the  depot  and  looked  into 
the  cars ;  that  no  vehicle  was  seen  going  from  the  depot 
immediately  before  the  shooting ;  H.'s  pistol  made  a  louder 
report  than  G.'s ;  that  the  loud  report  was  heard  first,  then 
the  cry  of  murder  from  a  person  as  if  taken  by  surprise,  then 
rapid  shooting,  too  fast  for  only  two  pistols  ;  that  the  flashes 
came  from  several  directions  to  the  point  where  G.  was  found  ; 
that  immediately  afterwards  the  parties  charged  were  near 
the  spot ;  that  some  men  got  out  of  a  vehicle,  commenced 
shooting,  and  G.  shot  back ;  that  the  marks  indicated  that 
more  than  two  did  the  shooting.  Other  witnesses  testified 
that  the  flashes  indicated  that  only  two  were  shooting;  that 
the  smaller  report  was  heard  twice,  then  the  louder,  then 
rapid  shooting ;  that  H.'s  pistol  had  six  empty  chambers,  G.'s 
five ;  G.  was  hit  three  times,  H.  twice ;  that  H.  frequently 
went  to  the  depot  or  hotels  near,  and  took  friends  home  with 
him ;  that  E.  was  in  his  employ,  and  accustomed  to  attend 
him ;  that,  when  the  shooting  commenced,  the  vehicle  was 
going  rapidly.  E.  testifies  that  a  shot  was  fired  into  the  vehi- 
cle ;  that  H.  and  he  jumped  out,  and  upon  seeing  H.  and  G. 
shoot  at  each  other,  he  ran  away ;  tliat  no  one  else  was  Avith 
them  until  afterwards.  The  driver  testified  to  about  the 
same  facts,  and  that  his  horse  ran  away  when  the  shooting 
commenced.  H.  stated  that  he  did  the  killing  without  assist- 
ance ;  that,  while  in  the  vehicle,  he  was  shot  at  and  hit ;  that 
he  jumped  out,  advanced  on  G.,  shooting  till  he  emptied  his 
pistol,  and  that  G.  was  knocked  down  by  his  shots,  raised  and 
fired,  when  he  struck  liim  with  his  pistol  and  l)eat  him  down. 
H.'s  [)hysician  testiliL'd  that  tlic  ball  in  liis  stomach  went  first 

1  Isaacs  I'.  Statc,23 Tex.  174  (18G0).  2  (J5  Miss.   147   (1887);  s.c.  3  So. 

Rep.  241. 


SEC.  179.]  DEFENCES   TO    HOMICIDE.  201 

through  his  arm,  and  from  its  position  mustjiave  been  shot 
while  in  a  sitting  posture.  Upon  habeas  corpus  proceedings, 
the  court  said  that  H.  alone  participated  in  the  killing,  and 
that  he  acted  on  provocation  insufficient  in  law,  and  bail 
should  be  denied  him ;  but  that  E.  should  be  either  bailed  or 
discharged. 

Sec.  179.    Same  —  The  slayer  must  be  without  fault.  — 

One  who  kills  another  under  an  apprehension  of  death  or 
great  bodily  harm  from  an  assault,  must  have  been  free  from 
fault  in  bringing  on  the  difficulty,  if  he  would  contend  that 
the  homicide  was  excusable.^ 

Thus  if  A  points  a  loaded  pistol  at  B,  and  B  grapples  with 
liim  to  prevent  the  shooting,  A  cannot  then  shoot  B,  and 
allege  that  he  did  so  in  self-defence.^  This  is  a  case  where 
the  evidence  tends  to  show  that  the  defendant  had  a  difficulty 
with  deceased,  on  the  morning  of  the  day  of  the  killing, 
about  the  latter  having  whipped  the  former's  younger  brother, 
and  the  defendant  fired  at  the  deceased,  who  returned  the 
fire ;  that  during  the  day  the  deceased  made  threats  that  he 
would  kill  the  defendant,  which  came  to  the  latter's  ears;  and 
that  the  defendant  then  with  a  gun  in  his  hands,  in  position 
for  instant  use,  met  the  deceased,  asked  him  if  he  had  made 
such  threats,  who  without  reply,  ffi'ed  at  the  defendant,  wlio 
returned  the  fire  with  both  barrels  of  his  gun,  killing  the  de- 
ceased, who  before  he  fell,  seemed  to  try  to  fire  again,  the 
theory  of  self-defence  is  not  tenable.^ 

1  Jackson    v.    State,    81     Ala.    ;53  State,  09  Ind.  413    (1884);    State   v. 

(1886);    Bakep   v.  State,  81    Ala.  38  Neeley,   20    Iowa,  108   (1865);    State 

(1886);  Tesney  v.   State,  77  Ala.  33  v.  Teak,   85    Mo.  190    (1884);   State 

(1884)  ;    Leonard    v.    State,    66    Ala.  v.  Hudson,  59  Mo.  135  (1875)  ;  State 

461   (1880)  ;   Judge  v.  State,  58    Ala.  v.  Linney,  52  Mo.  40  (1873)  ;  State  v. 

40G    (1877)  ;    s.c.  29   Am.  Hep.  757  ;  Starr,  38  Mo.  270  (1866)  ;   S/iurter  v. 

Eiland  i;.  State,  52  Ala.  322   (1875);  People,  2    N.»Y.  193    (1849);    s.c.  51 

Murphy  ?;.  State,  37  Ala.  142  (1861);  Am.  Dec.    286;    Stewart    v.    State,    1 

s.c.    1    Ala.    Sel.    Cas.   48;  People    v.  Ohio  St.  66  (1852)  ;  State  z'.  Beckham, 

Lamb,  17  Cal.  323   (1861)  ;  Peoi)le  v.  24  S.  C.  283  (1885);   Tliiiston  r.  State, 

Stonecifer,  6  Cal.  405  (1856);  Stiles  21  Tex.  App.  245  (1887);  Vaiden  v. 

V.  State,  57  Ga.  183  (1876);  Koach  v.  Commonwealth,   12  Gratt.   (Va.)  717 

State,   34    Ga.    78    (1864);    Lingo   v.  (1855). 

State,   29   Ga.    470    (1859) ;    Haynes  -  Clieford    v.   State,    58    Wis.    477 

V.  State,  17  Ga.  465  (1855)  ;  Kinney  (1883)  ;  s.c.  17  N.  W.  Rep.  304. 

V.  People,  108  111.  519  (1884)  ;  Adams  ^  Baker  v.  State,  81  Ala.  38  (1886). 
V.  People,  47  111.  376  (1868)  ;  Story  v. 


202  HOMICIDE.  [chap.  VII. 

Intoxication  not  furnishing  any  excuse  for  homicide,^  the 
fact  that  the  deceased  was  made  drunk  by  liquor  sold  him 
by  the  defendant  will  not  deprive  the  defendant  of  the  right 
to  protect  himself  against  the  assault  of  the  deceased.^ 

In  those  cases  where  the  assailant  by  his  conduct  had, 
before  the  homicide  was  committed,  given  notice  of  his 
desire  to  withdraw  from  the  combat,  and  had  really  and  in 
good  faith  endeavored  to  decline  any  further  struggle,  and 
the  homicide  was  necessary  to  save  himself  from  great  bodily 
harm,  it  may  be  excusable/^ 

The  right  of  self-defence  is  not  impaired  by  mere  prepa- 
ration for  a  wrongful  act ;  but  such  preparation  must  be 
accompanied  by  such  demonstration,  either  verbal  or  otherwise, 
as  is  indicative  of  the  wrongful  purpose.*  Neither  will  the 
right  be  created  by  the  use  of  words,  however  opprobrious ; 
for  if  an  assault  by  the  person  slain,  made  because  of  such 
words  directed  to  him  by  the  slayer,  is  so  violent  as  to  be  out 
of  all  proportion  to  the  provocation  given,  such  extreme 
violence  may  constitute  an  excuse  for  the  homicide.'^  Nor  will 
the  fact  that  the  defendant  was  trespassing  upon  the  property 
of  the  deceased  at  the  time  of  the  homicide  preclude  him  from 
pleading  self-defence  where  the  assault  by  the  deceased  was 
witli  a  deadly  weapon,  and  endangered  the  defendant's  life.^ 
But  where  the  killing  was  done  in  mutual  combat,  entered 

1  See  post,  §  201-210.  (Ky.)  240  (1877)  ;   Commonwealth  ;•. 

2  See  Nichols  v.  Winfrey,  90  Mo.  Riley,  Thacli.  C.  C.  (Mass.)  471 
403  (1880) ;  s.c.  2  S.  W.  Rep.  305.  (1837)  ;  State  v.  Partlow,  90  Mo.  608 

3  People  V.  Gonzales,  71  Cal.  569  (1886);  s.c.  59  Am.  Rep.  31 ;  4  S.  W. 
(1887);  s.c.  9  Or.  L.  Mag.  307;  12  Rep.  14;  State  v.  Smith,  10  Nev. 
Pac.  Rep.  783  ;  People  v.  Robertson,  (il  106  (1875);  State  v.  Hill,  4  Dev. 
Cal.  046  (1885);  s.c.  6  Am.  Cr.  Rep.  &  B.  (N.  C.)  L.  491  (1839);  s.c.  34 
519;  8  Pac.  Rep.  600;  People  r.  Am.  Dec.  396;  Stojer  v.  State,  15 
Bush,  65  Cal.  129  (1884)  ;  s.c.  5  Am.  Ohio  St.  47  (1864)  ;  s.c.  86  Am.  Dec. 
Cr.  Rep.  459 ;  3  Pac.  Rep.  590 ;  Peo-  470  ;  Bonnard  v.  State,  25  Tex.  App. 
pie  V.  Wong  Ah  Teak#63  Cal.  544  173  (1888)  ;  s.c.  8  Am.  St.  Rep.  431 ; 
(1883)  ;  People  v.  Westlake,  62  Cal.  7  S.  W.  Rep.  862  ;  White  ;-.  State,  23 
303  (1882)  ;  s.c.  4  Cr.  L.  Mag.  418;  Tex.  App.  154  (1887);  s.c.  3  S.  W. 
People  c.  Simons,  60  Cal.  72  (1882);  Rep.  710;  Roach  v.  State,  21  Tex. 
Stiles  V.  State,  57  Ga.  183  (1876);  App.  249  (1887)  ;  Cartwright  i-.  State, 
Hittner  v.  State,  19   Ind.  48    (1862)  ;  14  Tex.  App.  486  (1884). 

State  V.  Perlgo,  70  Iowa,  657  (1886)  ;  *  Cartwright  v.  State,  14  Tex.  App. 

s.c.  8   Cr.  L.   Mag.    156;    28   N.    W.  486(1884). 

Rep.  457  ;   State  v.  Archer,  69  Iowa,  =  Brown  i:  State,  58  Ga.  212  (1877). 

420  (1886)  ;  s.c.  29  N.  W.  Rep.  333;  «  State    v.    Perigo,  70    Iowa,    657 

Terrell   i.-.   Commonwealth,    13    Bush  (1886);    s.c.  8  Cr.  L.  Mag.  156;  2b 


SEC.  180.] 


DEFENCES   TO    HOMICIDE. 


203 


into  willingly,  and  in  the  knowledge  of  its  liability  to  cause 
death  to  one  or  the  other  of  the  combatants,  the  slayer  cannot 
plead  self-defence  to  an  indictment  for  killing  his  opponent 
in  the  fight.^ 

While  the  slayer  must  use  all  reasonable  means  to  avoid 
doing  the  fatal  act,  yet,  where  it  is  ^)lainly  apparent  that  ho 
is  about  to  be  assaulted  with  a  deadly  weapon,  and  he  is  not 
in  a  position  to  avoid  it,  the  law  does  not  require  him  to 
wait  until  his  assailant  gains  a  position  equal  to  his  own, 
and  is  upon  equal  terms  with  him  in  all  respects  ;  but  he 
may  lawfully  slay  him  so  soon  as  it  appears,  from  the  acts  of 
the  assailant,  that  a  mortal  combat  is  unavoidable.^ 

Sec.  180.  Same  —  Tlie  killing"  imist  appear  to  be  the 
last  resort  for  safety.  —  In  order  to  justify  a  homicide  on 
the  ground  of  self-defence,  a  person  must  employ  all  means 
Avithin  his  power,  consistent  with  his  safety,  to  avoid  the 
danger  and  avert  the  necessity ;  and  he  must  retreat,  if 
retreat  be  practicable.''^     But  a  person  assaulted  in  his  own 


N.  W.  Rep.  457.  See  State  r.  Arclier, 
69  Iowa,  420  (1880)  ;  s.c.  29  N.  W. 
Kep.  o'iS. 

1  People  V.  Tannan,  4  Park.  Or. 
Cas.  (N.  Y.)  514  (18G0)  ;  Gilleland 
V.  State,  44  Tex.  356  (1875).  Com- 
pare State  r.  Ingold,  4  Jones  (X.  C.) 
L.  216  (1856)  ;  s.c.  67  Am.  Dec.  283. 

-  Bohannon  r.  Coniiiionvvealtli,  8 
Bush  (Ky.)  481  (1871)  ;  s.c.  8  Am. 
Rep.  474  ;  1  Gr.  Cr.  Rep.  613  ;  Forten- 
berry  v.  State,  55  Miss.  405  (1877). 

3  Morrison  v.  State,  84  Ala.  405 
(1887)  ;  s.c.  4  So.  Rep.  402 ;  Finch  v. 
State,  81  Ala.  41  (1886)  ;  Ingram  v. 
State,  67  Ala.  67  (1880)  ;  Pierson 
V.  State,  12  Ala.  149  (1847)  ;  Dmican 
V.  State,  49  Ark.  543  (1887)  ;  s.c.  6 
S.  W.  Rep.  164;  Levells  v.  State, 
32  Ark.  585  (1877)  ;  McPherson  v. 
State,  29  Ark.  225  (1874);  People 
?'.  Campbell,  30  Cal.  312  (1866)  ; 
People  V.  Gatewood,  20  Cal.  146 
(1862)  ;  People  v.  Hurley,  8  Cal.  390 
(1857)  ;  Darby  v.  State,  79  Ga.  63 
(1887)  ;  s.c.  3  S.  E.  Rep.  663;  Stiles 
V.  States,  57  Ga.  183  (1876)  ;  Mitchell 


V.  State,  22  Ga.  211  (1857)  ;  s.c.  68 
Am.  Dec.  498  ;  Davison  v.  People,  90 
111.  221  (1878)  ;  Greschia  r.  People, 
53  111.  295  (1870)  ;  Malier  v.  People, 
24  111.  241  (1860)  ;  Schnier  v.  People, 
23  111.  17  (1859)  ;  State  v.  Do)»iell,/,6d 
Iowa,  705  (1886)  ;  .s.c.  58  Am.  Rep. 
234  ;  27  N.  W.  Rep.  369 ;  State  v. 
Shclton,  64  Iowa,  333  (1884)  ;  s.c.  20 
N.  W.  Rep.  459 ;  Pond  v.  People,  8 
Mich.  150  (1860);  State  v.  Rheams, 
34  Minn.  18  (1885)  ;  s.c.  24  N.  W. 
Rep.  302 ;  State  v.  Shippeij,  10  Minn. 
233  (1865);  s.c.  88  Am.  Dec.  70; 
State  V.  Partlow,  90  Mo.  608  (1886)  ; 
s.c.  59  Am.  Rep.  31;  4  S.  W. 
Rep.  14 ;  State  i'.  Johnson,  76  Mo. 
121  (1882)  ;  Parrish  v.  State,  14  Neb. 
60  (1883)  ;  s.c.  15  N.  W.  Rep.  357  ; 
State  V.  Wells,  1  N.  J.  L.  (Co.\e)  424 
(1790)  ;  s.c.  1  Am.  Dec.  211  ;  People 
V.  Sullivan,  7  N.  Y.  396  (1852)  ;  Peo- 
ple V.  Harper,  1  Edm.  oel.  Cas. 
(N.  Y.)  180  (1845);  Commonwealth  v. 
Drum,  58  Pa.  St.  9  (1808)  ;  Logite  v. 
Commonweallh,  38  Pa.  St.  265  (1861)  ; 
s.c.  80  Am.  Dec.  481 ;  Hinton  i;.  State, 


204 


HOMICIDE. 


[chap.  VII. 


dwelling-house  is  not  bound  to  retreat.^  The  reason  of 
this  is  that  being  in  his  own  house  he  is  to  be  regarded 
as  "  at  the  wall."  Every  man's  dwelling-house  is  said  to 
be  "his  castle,"  and  he  is  not  required  under  any  circum- 
stances to  retreat  from  it,  but  may  pursue  Ins  adversary 
until  he  has  freed  himself  from  all  danger.^  This  doctrine, 
however,  is  to  be  taken  with  some  degrees  of  allowance; 
for  even  in  his  own  house  a  man  may  not,  needlessly,  take 
life  in  his  own  defence.^     And  it  is  said  by  the  supreme  court 


24  Tex.  454  (1859)  ;  United  States  r. 
Wiltberger,  3  Wash.  C.  C.  618  (1819)  ; 
United  States  t'.  King,  34  Fed.  Rep. 
302  (1888).  See  Watson  v.  State,  82 
Ala.  10  (1886)  ;  Dolau  v.  State,  81 
Ala.  11  (1880)  ;  Jones  v.  State,  7()  Ala. 
8  (1884)  ;  People  v.  Gonzales,  71  Cal. 
509  (1887)  ;  s.c.  9  Cr.  L.  Mng.  307  ; 
12  Pac.  Hep.  783  ;  Haynes  v.  State,  17 
Ga.  405  (1855)  ;  Hunijan  v.  State,  57 
Ind.  80  (1877)  ;  s.c.  26  Am.  Rep.  52  ; 
2  Am.  Cr.  Rep.  318;  Creek  v.  State, 
24  Ind.  154  (1805)  ;  State  v.  Thomp- 
son, 9  Iowa,  188  (1859)  ;  s.c.  74  Am. 
Dec.  342  ;  Tweedy  v.  State,  5  Iowa, 
433  (1857)  ;  Mareum  v.  Common- 
wealth (Ky.)  4  S.  W.  Rep.  786 
(1887)  ;  HoUoway  v.  Commonwealth, 
11  Bush  (Ky.)  344  (1875)  ;  Bohannon 
V.  Commonwealth,  8  Bush  (Ky.)  481 
(1871);  s.c.  8  Am.  Rep.  474;  1  Gr. 
Cr.  Rep.  613 ;  Philips  r.  Common- 
wealth, 2  Duv.  (Ky.)  328  (1805); 
State  V.  Harman,  78  N.  C.  515  (1878) ; 
State  I'.  DI.xon,  75  N.  C.  275  (187())  ; 
Erwin  V.  State,  29  Ohio  St.  180  (1870)  ; 
s.c.  23  Am.  Rep.  733 ;  2  Am.  Cr.  Rep. 
251  ;  May  v.  State,  22  Te.v.  A  pp.  595 
(1887);  s.c.  3  S.W.  Rep.  781  ;  Williams 
V.  State,  22  Tex.  App.  497  (1887)  ; 
s.c.  4  S.  W.  Rep.  04;  Orman  v.  State, 
22  Tex.  App.  604  (1887)  ;  s.c.  58  Am. 
Rep.  062;  3  S.  AV.  Hep.  468;  Hunni- 
cutt  V.  State,  20  Tex.  App.  032  (1880) ; 
Bell  V.  State,  17  Tex.  App.  538  (1885)  ; 
Kinfj  V.  State,  13  Tex.  App.  277 
(1883)  ;  Foster  v.  State,  11  Tex.  App. 
105  (1882)  ;  Kendall  v.  State,  8  'IVx. 
App.  569  (1880). 

1  Dolan  r.  State,  81  Ala.  11  (1880)  ; 
Jones  V.  State,  70  Ala.  8  (1884);  Car- 


roll V.  State,  23  Ala.  28  (1853)  ;  s.c. 
58  Am.  Dec.  282 ;  De  Forest  r.  State, 
21  Ind.  23  (1803)  ;  State  v.  Middle- 
ham,  02  Iowa,  150  (1883)  ;  s.  c.  17 
N.  W.  Rep.  446  ;  Bledsoe  v.  Common- 
wealth (Ky.);  7  S.  W.  Rep.  884 
(1888)  ;  People  v.  Lilly,  38  Mich.  270 
(1878)  ;  Pond  v.  People,  8  Mich.  150 
(1800);  State  v.  Harman,  78  N.  C. 
515  (1878). 

Where  the  husband  on  entering 
his  house  detects  his  wife  in  suspi- 
cious circumstances  with  a  paramour, 
and  thereupon  enters  into  a  fight  with 
him,  standing  not  entirely  on  the  de- 
fensive, and  kills  him,  it  is  at  the  most 
manslaughter,  or,  if  he  stands  on  the 
defensive,  and  does  not  fight  until  he 
is  attacked  and  threatened  with  death 
or  great  bodily  harm,  when,  to  save 
himself,  he  kills  his  assailant,  it  is 
excusable  homicide,  even  if  the  other 
does  not  turn  and  flee  out  of  the 
house.  State  v.  Harman,  78  N.  C. 
515  (1878). 

-  Carroll  v.  State,  23  Ala.  28 
(1853)  ;  Pond  v.  People,  8  Mich.  150 
(1800).  See  State  v.  Collins,  32  Iowa, 
30  (1871)  ;  Commonwealth  v.  Sel- 
fridge  (Mass.),  1  Ilorr.  &.  T.  Self-Def. 
1  (1800)  ;  Patten  v.  People,  18  Mich. 
314(1809). 

3  See  Carroll  v.  State,  23  Ala.  28 
(1853);  Greschia  v.  People,  53  111. 
295  (1870);  State  v.  Middleham,  62 
Iowa,  150  (1883)  ;  s.c.  17  N.  W.  Rep. 
440;  State  v.  Collins,  32  Iowa,  36 
(1871);  State  v.  Benham,  23  Iowa, 
154  (1807)  ;  State  v.  Kennedy,  20 
Iowa.  509  (1800)  ;  State  v.  Decklotts, 
19  Iowa,  447  (1865)  ;  State  v.  Thomp- 


SEC.  181.]  DEFENCES   TO   HOMICIDE.  205 

of  Vermont  in  the  case  of  State  v.  Patterson  ^  that  a  man's 
house  is  his  castle  only  in  the  respect  that  it  is  sacred  for  the 
protection  of  his  person  and  familj-.  An  assault  on  the  house 
can  be  lawf  uU}'  resisted  to  the  extent  of  using  deadly  weapons 
onl}'  in  case  the  assault  is  made  with  the  intent  either  of 
taking  the  life  of  the  inmate,  or  of  doing  him  great  bodily- 
harm,  and  such  resistance  is  necessary  to  prevent  such  crime ; 
or  in  case  the  inmate  has  reason  to  believe  from  the  circum- 
stances, and,  in  fact,  does  believe  that  it  i.i  necessary  to  pre- 
vent the  commission  of  such  crime. 

The  principle  that  a  man  attacked  in  his  own  house  is  not 
called  upon  to  retreat  before  taking  the  life  of  his  assailant 
is  said  to  be  applicable  in  case  of  an  altercation  between 
partners  in  their  place  of  business.^ 

Where  the  evidence  shows  that  the  defendant,  when  he 
fired  the  fatal  shot,  was  standing  at  the  door  of  his  shop,  with 
one  foot  on  the  lower  step,  a  charge  that  to  make  out  the 
case  of  self-defence  the  evidence  must  show  that  the  difficulty 
was  not  provoked  or  encouraged  by  him ;  that  he  was,  or 
appeared  to  be.  so  menaced  as  to  create  a  reasonable  appre- 
hension of  danger  to  his  life,  or  of  grievous  bodily  harm  ; 
and  that  there  was  no  reasonable  mode  of  escape  from  such 
peril,  does  not  antagonize  the  principle  that  a  man  is  not 
bound  to  retreat  from  his  own  domicile.^ 

Sec.  181.  Same  —  Duty  to  retreat.  —  The  ancient  doc- 
trine is  that  one  assailed  must  retreat  unless  retreat  will  en- 
danger his  safety ;  and  must  refrain  from  taking  life,  if  there 
is  any  other  reasonable  mode  of  escape.  This  doctrine  still 
prevails  in  many  states.*  But  it  is  said  in  the  case  of  Run- 
yan  v.  State,^  that  the  ancient  doctrine  as  to  the  duty  of  a 
person  assailed  to  retreat  as  far  as  he  can  before  he  is  justi- 
fied in  repelling  force  by  force,  has  been  greatly  modified  in 

son,   9   Iowa,    188   (1859);    Common-  *  See  Morrison  r.  State,  84  Ala.  405 

wealth  V.  Mead,  78  Mass.   (12  Gray)  (1887);  s.c.  4  So.  Rep.  402;  State  v. 

167    (1858);    People    v.    Rector,    19  Donnelly,  69  Towa,  705  (1886);   s.c.. 

AVend.  (N.  Y.)  509  (1838).  58  Am.  Rep.  234;  27  N.  W.  Rep.  309. 

145  Vt.  308  (1873);    s.c.  12  Am.  Cow/mre  State  r.  Middlcliam,  62  Iowa, 

Rep.  200.  150  (1883)  ;  s.c.  17  N.  W.  Rep.  446. 

2  Jones  v.  State,  76  Ala.  8  (1884).  &  57  Ind.  80  (1877)  ;    s.c.  26   Am. 

3  Watson    V.    State,    82    Ala.     10  Rep.  52. 
(1886)  ;  s.c.  2  So.  Rep.  455. 


20G  HOMICIDE.  [chap.  VII. 

this  country,  and  has  a  much  narrower  application  than  for- 
merl}'.  The  real  question  is  did  the  defendant,  when  assaulted, 
believe,  and  have  reason  to  believe,  that  the  use  of  a  deadly 
wea^^on  was  necessary  to  his  own  safety.  The  weight  of 
authority  now  is  that  when  a  person,  being  without  fault  in 
a  place  where  he  has  a  right  to  be,  is  violently  assaulted, 
he  may,  without  retreating,  repel  force  by  force,  and  if,  in  the 
reasonable  exercise  of  his  right  of  self-defence,  his  assailant 
is  killed,  he  is  justifiable.^ 

The  supreme  court  of  Ohio  say,  in  the  case  of  Erwin 
V.  State,^  that  where  a  person  in  the  lawful  pursuit  of 
his  business  and  without  blame,  is  violently  assaulted  by 
one  who  manifestly  and  maliciously  intends  and  endeavors 
to  kill  him,  the  person  so  assaulted,  without  retreating, 
although  it  be  in  his  power  to  do  so  without  increasing 
his  danger,  may  kill  his  assailant  if  necessary  to  save  his 
own  life  or  prevent  enormous  bodily  harm.^ 

Sec.  182.  Same  —  Kigrlit  to  pursue  assailant.  —  Where 
one  is  attacked  by  another  who  manifestly  attem^Jts  by  vio- 
lence to  take  his  life  or  do  him  great  bodily  harm,  and  under 
such  circumstances  that  no  retreat  is  practicable,  he  is  not 
only  not  obliged  to  retreat,  but  may  pursue  his  adversary 
until  he  has  secured  himself  from  all  danger,  and  if  he  kill 

1  See  Kendall  I'.  State,  8  Tex.  App.  164   (1873);    s.c.  13  Am.  Rep.  492; 

569   (1880),  wliere  it  is  held  that  un-  People  v.  Schryver,  42  N.  Y.  1  (1870); 

der   the    Texas    Code,    articles    569,  s.c.  1  Am.  Rep.  480;  State  v.  Patter- 

574,    if    A    violently     attack    B,  and  son,  45  Vt.  308  (1873);  s.c.  12  Am. 

no  purpose  of  serious  injury  is  reason-  Rep.  200. 

ably  indicated,    B,    or   C   interfering  In  Finch  r.  State,  81  Ala.  41  (1886); 

for  B,  must,  before  killing  A,  resort  s.c.  1  So.  Rep.  565,  L.  and  the  defendant 

to    all    other    means    of    prevention  while  riding  together  quarrelled,  and 

though  not  bound  to  retreat.      If  A  the  former  persuaded  the  defendant  to 

attack  B's  property,  C  is    not    justi-  dismount,  which  he  did;  L.  then  also 

fied    in    killing  A  unless    the  life   or  dismounted  and  cut  a  stick,  and  with 

person  of  B   is  in  peril  from  the  at-  it  and  his  knife  attacked  defendant, 

tack.     The  phrase  "  all  other  means  "  who  in  turn  fouglit  ami  killed  L.     Tiie 

does    not   import  all   possible  means,  court  held,  that  if  the  defendant  covihl 

but  all  means  reasonably  proper  and  have  safely  and  conveniently  retreated 

effective  under  the  circumstances.  when  attacked,  without  putting  liim- 

-  29    Ohio  St.  186   (1876)  ;  s.c.  23  self  to  disadvantage  it  was  his  duty 

Am.  Rep.  733.  to    do    so,    although    he    would    have 

•''See  Bohannon  v.  Commonwealth,  been  compelled  to  let  loose  the  mule 

8  Bush   (Ky.)  481  (1871)  ;    s.c.  8  Am.  he  was  driving. 
Rep.  474;  Stokes  v.  People,  53  N.  Y. 


SEC.  183.]  DEFEXCES    TO   HOMICIDE.  207 

him  in  so  doing  it  is  justifiable  self-defence.  But  the  right, 
even  in  the  most  extreme  case,  to  pursue  and"  kill  a  retreating 
assailant,  is  one  which  ceases  as  soon  as  the  assailed  has 
reasonable  ground  for  believing  the  danger  had  ceased  to  be 
immediate  and  pending. ^ 

Sec.  183.  Same  —  Defence  of  others.  —  Under  the  com- 
mon law  the  right  of  self-defence  extends  to  the  relationship 
of  husband  and  wife,  ])arent  and  child,  master  and  servant,- 
and  where  a  person  kills  another  in  the  necessary  defence  of 
one  to  whom  he  bears  any  one  of  such  relationships,  he  is 
excusable,  the  same  as  though  he  had  committed  the  homi- 
cide in  defence  of  his  own  person ;  ^  but  such  a  homicide  is 
excused  only  under  the  same  circumstances  whicli  would 
excuse  the  killing  in  self-defence.  The  danger  must  be 
apparent  and  imminent,  and  the  killing  must  be  the  only 
means  of  avoiding  it.  Thus,  where  one  of  two  brothers  is 
in  fault  in  bringing  on  an  affray,  the  other  has  not  the  right 
to  take  life  in  his  defence,'*  unless  he  first  retreats  as  far  as 
is  practicable,  and  endeavors  in  good  faith  to  avoid  the  con- 
flict.^ But  it  has- been  said  that  the  fact  that  a  man  and  woman 
live  together  in  a  state  of  concubinage,  does  not,  of  itself, 
justify  a  man  in  taking  life  in  defence  of  the  person  of  the 
woman,  and  it  is  not  error,  upon  the  evidence  of  such  fact,  to 
instruct  the  jury  that  the  law  of  justification  does  not  apply ."^ 

1  Luby  V.  Commonwealth,  12  Bush  Connaughty  v.  State,  1  AVis.  lOo 
(Ky.)    1    (1876).      See    Holloway   v.     (185;J). 

Commonwealth,    11    Bush    (Ky.)  ;J44  ^  gee  Smurr  v.  State,  105  Ind.  125 

(1875)  ;  Boiiannon  r.  Comnionwealtli,  (1885)  ;  s.c.  4  N.  E.  Rep.  445;  Patten 

8  Busli  (Ky.)  481  (1871);  s.c.  8  Am.  v.  People,  18  Mich.  314  (1809);  s.c. 

Rep.   474;    1    Green    Cr.    Rep.    613;  100  Am.  Dec.   173;  Pond   v.  People, 

Carico    v.    Commonwealth,    7     Bush  8  Mich.  150   (1860)  ;  Staten  v.  State, 

(Ky.)    124    (1870);    Young   r.   Com-  .30  Miss.  619  (1856)  ;  State  r.  Brittain, 

nionwealth,  6  Bush  (Ky.)  312  (1860);  89  N.  C.  482  (1883)  ;  Parker  v.  State, 

Philips    i".    Commonwealth,    2    Duv.  31  Tex.  132   (1868)  ;    State  v.  Greer, 

(Ky.)  328   (1865)  ;    Pond    ;•.    People,  22    W.    Va.  800   (1883)  ;  Hancock  r. 

8  Mich.  150  (1860)  ;  West  v.  State,  2  Baker,  2  B.  &  P.  260   (1800)  ;  1  Hale 

Tex.  App.  460  (1878).  P.   C.    484;   Reg.    v.    Harrington,    10 

2  Oliverr.  State,  17  Ala.  587  (1850);  Cox  C.  C.  370  (1866). 

Armistead  r.  State,  18  Ga.  704  (1855);  *  Smurr    ;•.    State,    105    Ind.    125 

Waybright  v.  State,  56  Ind.  122  (1877);  (1885)  ;  s.c.  4  N.  E.  Rep.  445. 
Cheek  v.  State,  35  Ind.   492    (1871);  ^  State  v.   Greer,   22   W.   Va.    800 

Pond  V.  People,  8  Mich.  150  (1860)  ;  (1883). 

Staten  v.  State,  30  Miss.  619  (1856);  ^  Parker    v.    State,    31    Tex.    132 

Sharp  V.  State,   19  Ohio  387  (1850);  (1868). 


208  HOMICIDE.  [chap,  VII. 

In  the  case  of  Patten  v.  People,^  on  a  trial  for  a  homicide 
resulting  directly  from  a  riotous  assembly,  there  was  evidence 
showing  that  the  mother  of  the  accused  was  in  the  house  at 
the  time  when  it  was  surrounded  by  the  rioters,  and  being 
in  feeble  health,  there  was  sufficient  cause  to  apprehend  her 
speedy  death  if  the  conduct  of  the  rioters  was  allowed  to 
continue  ;  but  the  court  held  that  to  render  this  available  as 
an  excuse  for  killing  one  of  the  rioters  there  must  be  proof 
that  the  rioters  were  informed  of  the  condition  of  the  mother, 
or  that  every  reasonable  and  practical  effort  had  been  made 
to  notify  them  of  the  facts,  and  that  if  such  was  the  case  the 
accused  would  have  been  excused  to  the  same  extent  as  if 
the  danger  to  the  life  of  his  mother  had  resulted  from  an 
actual  attack  upon  her  person,  or  the  like  danger  to  the 
accused  from  an  attack  upon  him.  That  is,  he  could  resort 
to  such  forcible  means,  even  with  a  dangerous  weapon,  as  he 
believed  to  be  necessary  for  protection,  and  even  if  such  means 
should  result  in  the  death  of  any  of  the  supposed  assailants. 

Sec.  184.  Same  —  Defence  of  property — Of  the  habita- 
tion.—  Where  a  dwelling-house  is  assailed,  with  the  intent 
to  take  life,  or  inflict  great  bodily  harm,  the  owner  or  occu- 
j)ant  may  lawfully  use  such  fatal  means  to  protect  himself 
and  family  as  would  be  necessary  if  met  by  his  assailant  face 
to  face  in  any  other  place.  He  is  not  bound  to  retreat,  but 
may  kill  his  assailant  if  it  reasonably  appears  to  be  necessary 
for  the  protection  of  the  dwelling.^ 

"A  man's  house  is  his  castle,"  say  the  books,^  but  it  is  his 
castle  only  in  the  sense  that  it  is  sacred  for  the  protection  of 
his  person  and  his  family.'*     This  principle  applies  to  all  the 

1  18   Mich.   314    (18G9) ;   s.c.    100  State   v.   Peacock,   40   Ohio    St.   333 

Am.  Dec.  173.  (1883)  ;  State  v.  Patterson,  45  Vt.  308 

■i  People    V.    Walsh,    43    Cal.    447  (1873);  s.c.  12  Am.  Rep.  200;  1  Gr. 

(1872)  ;  s.c.  1  Gr.  Or.  Rep.  487  ;  State  Cr.  Rep.  490;  Stonemaii  r.  Common- 

1-.    Dugan,   1   Houst.   Cr.  Cas.    (Del.)  wealth,  25  Gratt.  (Va.)  887  (1874). 

5(33(1879);   Stater.  Horskin,  1  Houst.  3  state    v.    Patterson,    45    Vt.   308 

Cr.  Cas.  (Del.)  11(5  (1862)  ;  McPher-  (1873);  s.c.  12  Am.  Rep.  200;  1  Gr. 

son  V.  State,  22  Ga.  478  (1857);  Hud-  Cr.    Rep.   400;    Harcourt's    Case,    5 

gins  V.  State,  2  Kelly  (Ga.)  173  (1847);  Eliz.  (1563)  ;  Fost.  319  ;  1  Hale  P.  C. 

People    r.    Coughlin,    67    Mich.    400  485,  486. 

(1887)';  s.c.  35  N.  W.  Rep.  72;  Pond  *  State    v.   Patterson,    45    Vt.   308 

V.  People,  8  Mich.  150  (1860)  ;  People  (1873)  ;  s.c.   12  Am.  Kep..200;  1  Gr. 

V.  Horton,  4  Mich.  67   (1856);  Mor-  Cr.  Rep.  490. 
gan  V.  Durfee,  69  Mo.  469    (1879) ; 


SEC.  184.]  DEFENCES    TO    HOMICIDE.  209 

buildings  adjacent  to  or  connected  with  the  dwelling-house 
proper.  Thus*t  was  held  in  an  early  Michigan  case,  that  a 
building  thirty -six  feet  distant  from*  a  man's  house,  used  for 
preserving  the  nets  employed  in  the  owner's  ordinary  occu- 
pation as  a  hsherman,  and  also  a  permanent  dormitory  for 
his  servants,  is  in  law  a  part  of  his  dwelling-house,  though 
not  included  with  the  house  by  a  fence.  A  fence  is  not  nec- 
essary to  include  buildings  within  the  curtilage,  if  within 
a  space  no  larger  than  that  usually  occupied  for  the  pur- 
poses of  the  dwelling  and  customary  outbuildings.^  In  the 
recent  Michigan  case  of  People  v.  Coughlin  ^  the  defence  was 
that  the  killing  was  done  in  self-defence.  At  the  time  of  the 
homicide  the  defendant  was  in  his  "  root  house,"  or  outdoor  cel- 
lar, and  resisting  an  invasion  of  it.  The  court  gave  the  same 
instructions  as  would  have  been  applicable  if  this  "root  house" 
had  been  defendant's  dwelling-house,  and  these  instructions 
were  sustained  on  appeal.^  And  it  is  held  by  the  supreme 
court  of  Missouri  in  the  case  of  Morgan  v.  Durfee  *  that  a 
2)erson  has  the  right  to  use  a  deadly  weapon  in  defence  of 
his  office,  even  to  the  extent  of  taking  his  assailant's  life. 
In  this  case,  Morgan,  a  man  who  carried  concealed  weapons 
and  was  reputed  to  be  a  quarrelsome  and  dangerous  man, 
and  who  was  stronger  than  the  defendant,  entered  defend- 
ant's business  office  and  abused  him  with  opprobrious  epithets. 
Defendant  ordered  him  to  leave,  but  he  refused  and  contin- 
ued the  abuse.  Defendant  then  pushed  him  with  his  open 
hand  toward  the  door,  when  Morgan  violently  throttled  him 
and  moved  his  hand  as  if  endeavoring  to  draw  a  weapon, 
whereupon  the  defendant,  reaching  out  his  hand  to  a  safe  to 
steady  himself,  grasped  a  seal  and  struck  Morgan  on  the 
liead,  knocking  him  down,  and  he  subsequently  died  from 
the  effects  of  tlie  blow.  In  a  civil  action  for  damages,  it 
was  held  that  the  defendant's  act  was  justifiable. 

A  homicide  is  justifiable  only  when  the  entry  into  the 
habitation  is  being  made  in  a  violent,  riotous,  or  tumultuous 
manner,  for  the  purpose  of  offering  violence  to  some  person 

^  Pond    V.    People,    8    Mich.    150  ^  See   Parrish    v.    Commonwealth, 

(18G0).  81  Va.  1  (1884). 

2  07    Mich.    4GG     (1887);    s.c.    35  ■>  GO  Mo.  4G9  (1879);  s.c.  .33  Am. 

N.  W.  Hep.  72.  Rep.  508. 

14 


210  HOMICIDE.  [chap.  VII. 

therein,  or  for  the  purpose  of  committing  a  felony  by  vio- 
lence,; 1  and  where  so  made,  if  the  owner  or  person  in  charge, 
after  using  gentle  meafts  to  expel  another  from  his  house, 
resorts  to  violence,  and  is  resisted,  he  may  use  foTce  enough 
to  overcome  such  resistance.^  But  the  fact  that  the  deceased 
was  a  mere  trespasser  in  the  house. of  another,  having  entered 
with  the  consent  of  one  who  had  no  right  to  give  it,  will  not 
justify  a  homicide.^ 

It  is  thought  that  the  right  to  protect  one's  own  dwelling 
extends  to  that  of  another  person.  Thus,  in  Stoneman  v. 
Commonwealth,*  it  was  held  that  if  the  prisoner  shot  the 
deceased  under  a  reasonable  apprehension  that  the  deceased 
intended  to  burn  the  dwelling-house  of  his  mother,  or  commit 
some  other  known  felony,  and  that  there  was  imminent  danger 
of  such  design  being  carried  into  execution,  he  was  justified 
in  so  doing,  though  such  danger  was  unreal. 

The  idea  that  is  embodied  in  the  expression,  "A  man's 
house  is  his  castle,"  is  not  that  it  is  his  property,  and,  as 
such,  he  has  the  right  to  defend  and  protect  it  by  other 
and  more  extreme  means  than  he  might  lawfully  use  to 
defend  and  protect  his  shop,  his  office,  or  his  barn.  The 
sense  in  which  the  house  has  a  peculiar  immunity  is,  that  it 
is  sacred  for  the  protection  of  his  person  and  his  family.  An 
assault  on  the  house  can  be  regarded .  as  an  assault  on  the 
person,  only  in  case  the  purpose  of  such  assault  be  injury  to 
the  person  of  the  occupant,  or  members  of  his  family,  and, 
in  order  to  accomplish  this,  the  assailant  attacks  the  castle  in 
order  to  reach  the  inmates.  In  this  view,  it  is  well  settled 
that,  in  such  case,  the  inmate  need  not  flee  from  his  house 
in  order  to  escape  from  being  injured  by  the  assailant,  but  lie 
may  meet  him  at  the  threshold,  and  prevent  him  from  break- 
ing in  by  any  means  rendered  necessary  by  the  exigency ;  and 
upon  the  same  ground  and  reason  as  one  may  defend  himself 
from  peril  of  life  or  great  Ijodily  harm,  hy  means  fatal  to 
the  assailant,  if  rendered  necessary  by  the  exigency  of  the 
assault.     This   is    the    full   meaning    of   what   was   said   by 

1  People    V.    Walsh,    43    Cal.    447  ^  People    r.    Ilorton,    4    Mich.    67 
(1872)  ;  s.c.  1  Gr.  Cr.  Kep-  487.  (185^). 

2  State  V.  Dufran,  1  Iloust.  Cr.  Cas.  •»  25  Gratt.  (Va.)  887  (1874). 
(Del.)  563  (1879). 


SEC.  184.]  DEFENCES   TO    HOMICIDE.  211 

Holyroyd,  J.,  in  charging  the  jury  in  Meade's  Case.^  In  that 
case  some  exasperated  sailors  had  ducked  Meade,  and  were 
in  the  act  of  throwing  him  into  the  sea,  when  lie  was  rescued 
by  the  police.  As  the  gang  were  leaving,  they  threatened 
that  they  would  come  by  night  and  pnll  his  house  down.  In 
the  middle  of  the  night  a  great  number  came,  making 
menacing  demonstrations.  Meade,  under  an  apprehension, 
as  he  alleged,  that  his  life  and  property  were  in  danger,  fii*ed 
a  pistol,  by  which  one  of  the  party  was  killed.  Meade  was 
indicted  for  murder.  Upon  that  state  of  facts  and  evidence, 
the  judge  said  to  the  jur}-- :  "  A  civil  trespass  will  not  excuse 
the  firing  of  a  pistol  at  a  trespasser  in  sudden  resentment  or 
anger,  ...  a  man  is  not  authorized  to  fire  a  pistol  on  every 
intrusion  or  invasion  of  his  house.  He  ought,  if  he  has 
reasonable  opportunity,  to  endeavor  to  remove  him  without 
having  recourse  to  the  last  extremity.  But  the  making  an 
attack  upon  a  dwelling,  and  especially  at  niglit,  the  law 
regards  as  equivalent  to  an  assault  on  a  man's  person ;  for 
a  man's  house  is  his  castle,  and  therefore,  in  the  eyes  of  the 
law,  it  is  equivalent  to  an  assault,  l^ut  no  words  or  singing 
are  equivalent  to  an  answer,  nor  will  they  authorize  an 
assault  in  return.  .  .  .  There  are  cases  where  a  person  in  heat 
of  blood  kills  another,  that  the  law  does  not  deem  it  murder, 
but  lowers  the  offence  to  manslaughter;  as,  where  a  party 
coming  up  by  way  of  making  an  attack,  and  without  there 
being  any  previous  apprehension  of  danger,  the  party  attacked, 
instead  of  having  recourse  to  a  more  reasonable  and  less 
violent  mode  of  averting  it,  having  an  opportunity  so  to  do, 
fires  on  the  impulse  of  the  moment.  In  the  present  case,  if 
you  are  of  opinion  that  the  prisoner  was  really  attacked,  and 
that  the  party  were  on  the  point  of  breaking  in,  or  likely  to 
do  so,  and  execute  the  threats  of  the  day  before,  he,  perhaps, 
was  justified  in  firing  as  he  did.  If  you  are  of  opinion  that 
he  intended  to  fire  over  and  frighten,  then  the  case  is  one  of 
manslaughter  and  not  of  self-defence." 

The  sense  in  which  one's  house  is  his  castle,  and  he  may 
defend  himself  within  it,  is  shown  in  what  is  said  by  Hale,^ 
that,  "  in  case  he  is  assaulted  in  his  own  house,  he  need  not 
flee  as  far  as  he  can,  as  in  other  cases  of  se  defeiido,  for  he 

1  1  Lew.  C.  C.  184  (1823).  2  i  Hale,  P.  C.  486. 


212  HOMICIDE.  [chap.  VII. 

hath  the  protection  of  his  house  to  excuse  him  from  flying, 
as  that  would  be  to  give  up  the  protection  of  his  house  to 
his  adversary  hy  flight." 

The  true  distinction  between  the  house  as  property,  on 
the  one  hand,  and  as  castle  for  protection,  on  the  other,  is 
very  palpable,  viz. :  If  A  in  defence  of  his  house,  kill  B,  a 
trespasser,  who  endeavors  to  make  an  entry  upon  it,  it  is, 
at  least,  common  manslaughter,  uidess  indeed,  there  were 
danger  of  life  ;  but  where  the  trespass  is  barely  against  the 
property  of  another,  the  law  does  not  admit  the  force  of 
the  provocation  as  sufficient  to  warrant  the  owner  in  making 
use  of  a  deadly  or  dangerous  weapon ;  more  particularly  if 
such  violence  is  used  after  the  party  has  desisted  from  the 
trespass.  In  Carroll  v.  State,i  it  is  said  that  "  the  owner  may 
resist  the  entry  into  his  house,  but  he  has  no  right  to  kill, 
unless  it  be  rendered  necessary  in  order  to  prevent  a  felonious 
destruction  of  his  property,  or  to  defend  himself  against  loss 
of  life,  or  great  bodily  harm." 

Sec.  185.  Same  —  Of  other  property.  —  The  killing  of 
another  to  prevent  a  mere  trespass  upon  the  property  other 
than  a  habitation,  and  not  to  prevent  a  forcible  felony,  is  not 
justifiable  or  excusable  ;2  but  the  owner  of  property  is  justi- 
fied in  using  force  to  eject  a  trespasser,  and  in  killing  him  if 
necessary  to  protect  his  own  life  or  person  against  an  assault 
by  the  trespasser  in  resistance  of  the  attempt  to  eject  him.^ 
Homicide  in  defence  of  property  is  excusable  when  necessary 
to  defeat  or  prevent  the  commission  of  a  forcible  or  atrocious 

1  23  Ala.  28,  3G  (1853)  ;  s.c.  58  Am.  &  M.)  401  (1847)  ;  s.c.  47  Am.  Dec. 
Dec.  282.  i*3 ;    State    v.    Forsytlie,   89    Mo.   067 

2  Storey  r.  State,  71  Ala. 329  (1882)  ;  (]88())  ;  s.c.  1  S.  W.  Hep.  834  ;  People 
Simp.son  v.  State,  59  Ala.  1  (1877);  v.  Divine,  1  Edm.  Sel.  Cas.  (N.  Y.) 
8.0.  31  Am.  Rep.  1 ;  Noles  ?-.  State,  20  594  (1848)  ;  State  )•.  Brandon,  8  Jones 
Ala.  31  (1855);  s.c.  62  Am.  Dec.  711;  (N.  C.)  L.  403  (1802);  s.c.  Law. 
Harrison  v.  State,  24  Ala.  67  (1854)  ;  Insnn.  144  ;  State  r.  McDonald,  4 
s.c.  60  Am.  Dec.  4-50  ;  Carroll,  y.  Stale,  .Tones  (N.  C.)  L.  19  (1856);  Wliite 
23  Ala.  29  (1853)  ;  s.c.  58  Am.  Dec.  v.  Territory,  3  Wash.  Ter.  .397(1888)  ; 
282;  Johnson  r.  State,  17  Ala.  018  s.c.  19  Pac!  Rep.  37.  See  People 
(1850);  People  r.  HnnslicU.  10  Cal.  v.  Flanagan,  00  Cal.  2  (1881);  s.c. 
83  (1858);  State  v.  Moore,  31  Conn.  44  Am.  Rep.  52;  Weston  r.  Common- 
479  (1863);  s.c.  83  Am.  Dec.  159;  wealth.  111  Pa.  St.  251  (1885);  s.c. 
Monroe  v.  State,  5  Ga.  85  (1848);  0  Am.  Cr.  Rep.  430 ;  2  Atl.  Rep.  191. 
Davison  v.  People,  90  111.  221  (1878)  ;  3  Ayres  v.  State,  60  Miss.  709  (1883). 
McDaniel  V.  Stale,  16  Miss.  (8  Smed. 


SEC.  185.]  DEFENCES   TO   HOMICIDE.  213 

felony  thereon ;  ^  but  under  no  other  circum.stance.  Thus  a  vio- 
lent and  forcible  attempt  on  the  part  of  the  deceased  to  break 
into  defendant's  tobacco  house  in  the  night-time  to  remove 
a  crop  claimed  by  deceased,  but  which  had  not  been  divided, 
defendant  denying  his  right  to  any  of  it,  was  met  by  defend- 
ant shooting  and  killing  him  with  a  single-barrelled  fowling 
piece  loaded  with  small  shot,  it  was  held  to  be  justifiable 
homicide.^  In  Storey  v.  State,^  however,  it  is  said  that  the 
larceny  of  a  horse,  though  made  a  felony  by  statute,  does  not 
justify  the  killing  of  the  felon,  though  necessary  to  the  recap- 
ture of  the  horse. 

A  person  will  not  be  justified  in  taking  life  in  preventing 
or  repelling  a  mere  trespass,  although  the  trespass  could  not 
be  prevented  in  any  other  way,^  even  though  done  while  act- 
ing under  the  advice  of  council  that  he  had  a  legal  right  to 
protect  or  maintain  his  possession  of  the  same.^  Thus  a  per- 
son will  not  be  justified  in  shooting  a  highway  commissioner 
who  was  attempting  to  pull  down  the  defendant's  fence.^ 
In  White  v.  Territory  *"  it  appeared  that  the  deceased,  claiming 
to  be  owner  of  certain  land  in  the  actual  and  peaceable  occu- 
pancy of  the  defendant,  armed  himself  and  went  u[)on  the  same 
to  cut  and  take  away  the  hay  thereon ;  that  defendant  then 
armed  himself  with  a  revolver  and  went  to  where  the  deceased 
was  to  prevent  him  from  so  doing  and  to  warn  him  away,  and 
in  the  affray  that  ensued  killed  him.  The  trial  court  charged 
that  the  act  of  the  deceased  was  lawful,  while  the  act  of 
the  defendant  was  unlawful,  and  that  tho  latter  was  guilty  as 
charged ;  this  was  held  error  on  appeal,  because  the  entry  of 
the  deceased  was  a  trespass  which  the  defendant  had  a  right 
to  resist. 


1  People    V.    Flanagan,   60    Cal.   2  »  71  Ala.  .329  (1882). 

(1881)  ;  s.c.  44  Am.  Rep.  52;  State  1-.  *  Harrison    v.     State,    24    Ala.   67 

Moore,  31  Conn.  479  (1863);  s.c.  8,3  (1854);  s.c.  60  Am.  Dee.  450 ;  Carroll 

Aim.  Dee.  159.     See  People  r.  Payne,  v.   State,  23  Ala.  28  (1853)  ;    s.c.  58 

8  Cal.  .341   (1857)  ;   Roach  v.  People,  Am.  Dec.  282. 

77  111.25  (1875);   Morgan  v.  Durfee,  ^  Weston    v.    Commonwealtli,    111 

69  Mo.  469  (1879);  s.c.  33  Am.  Rep.  Pa.   St.  251    (1885);    s  c.   6  Am.  Cr. 

508;    Lilly  r.  State,  20    Tex.  App.  1  Rep.  436 ;  2  Atl.  Rep.  191. 

(1886)  ;    Parrish    v.    Commonwealth,  "  Davison    i-.    People,   90    111.    221 

81  Va.  1  (1884).  (1878). 

2  Parrish  v.  Commonwealth,  81  Va.  "  3  Wash.  Ter.  397  (1888)  ;  s.c.  19 
1  (1884).  Pac.  Rep.  37. 


214  HOMICIDE.  [chap.  VII. 

Sec.   186.    Same  —  Setting    spring--g'uiis.  —  What  a  man 

may  not  do  directly  he  may  not  do  indirectly.  A  man  may 
not,  therefore,  place  instruments  of  destruction  for  the  pro- 
tection of  his  property,  where  he  would  not  be  authorized  to 
take  life  with  his  own  hand  for  its  protection.  Thus  a  man 
may  not  set  spring-guns  ^  for  the  protection  of  his  property ,2 
and  if  he  does  and  death  results  to  any  trespasser  by  reason 
thereof  it  is  a  criminal  homicide.^  But  to  authorize  a  con- 
viction of  assault  with  intent  to  commit  a  murder,  a  specific 
felonious  intent  must  be  proved ;  and  so  where  one  plants 
such  weapons  with  the  general  intent  to  kill  trespassers  and 
wounds  a  particular  person,  he  cannot  be  convicted  of  assault 
with  intent  to  commit  murder.  The  intent  to  kill  that  parti- 
cular person  alone  must  be  shown  and  cannot  be  implied 
from  the  general  conduct.^ 

It  is  said  by  the  supreme  court  of  Alabama  in  the  case  of 
Simpson  v.  State,^  that  if,  in  the  defence  of  property,  other 
than  the  dwelling-house,  life  is  taken  with  a  deadly  weapon, 
as  here,  a  spring-gun,  it  is  murder,  although  the  homicide 
may  be  actually  necessary  to  prevent  the  trespass.  The  law 
having  defined  the  measure  of  protection  of  property  and  the 
force  which  may  be  employed  in  the  defence  thereof,  neither 
the  secrecy  of  the  trespass  not  the  frequency  of  its  repetition 
enlarges  the  one  or  the  other.  But  in  the  case  of  State  v. 
Moore ^  the  supreme  court  of  Connecticut  say  that  "In  the 
absence  of  any  statutory  provision  making  it  burglary  to  break 
and  enter  a  shop  in  the  night-season  with  intent  to  steal,  and  by 
the  early  strict  rules  5f  the  common  law,  a  man  may  not  take 
life  in  prevention  of  such  a  crime.   The  habits  of  the  people  and 

1  It  has  been  said  that  the  mere  in  this  conntry,  aside  fron>  the  possi- 
act  of  settini?  spring-guns  is  not  of  ble  exception  of  Kentucky.  See  Gray 
itself  unlawful,  but  that  the  person  v.  Combs,  7  J.  J.  Marsh  (Ky.),  478 
doing  80  may  be  responsible  for  inju-  (18o-2)  ;  s.c.  23  Am.  Dec.  431. 

ries  caused  thereby  to  individuals,  and  ^  Simpson     v.     State,    59    Ala.    1 

may  be  indictable  for  the  erection  of  (1877)  ;  s.c.  31  Am.  Kep.  1. 
a  nuisance  if  the  public  are  thereby  *  See  Hirston  v.  State,  54  Miss.  689 

subjected  to  any  danger.     See  State  (1877);  s.c.  28  Am.  Kep.  392 ;  Garnet 

V.  Moore,  31    Conn.  479  (1863)  ;  s.c.  v.  State,  1  Tex.  App.  605  (1877)  ;  s.c. 

83  Am.  Dec.  159.  28  Am.  Rep.  428. 

2  The  common  Law  of  England,  ^  59  Ala.  1  (1877)  ;  s.c.  31  Am. 
allowing    the  -owner   of    property   to  Rep.  1. 

erect  or  set  spring-guns  to  protect  it  ''  31  Conn.  479  (1803)  ;  s.c.  83  Am. 

from  trespassers,  has  not  been  adopted     Dec.  159. 


SEC.  187.]  DEFENCES    TO   HOMICIDE.  215 

other  circumstances  have,  however,  so  greatly  changed  since 
this  rule  was  established  that  it  is  very  questionable  whether, 
in  view  of  the  large  amount  of  property  now  kept  in  ware- 
houses, banks,  and  other  out-buildings,  it  should  not  be  held 
lawful  to  place  instruments  of  destruction  for  the  protection 
of  such  property.  Breaking  and  entering  a  shop  in  the  night- 
season  with  intent  to  steal  is  by  our  law  burglary ;  and  the 
placing  of  spring-guns  in  such  a  shop  for  its  defence  would 
be  justified  if  a  burglar  should  be  killed  by  them." 

Sec.  187.  Homicide  in  making  arrest.  —  An  officer  hav- 
ing a  warrant  of  arrest  is  justifiable  in  killing  one  accused 
of  felony  if  he  resists  or  flies ;  and  also  without  a  warrant, 
on  probable  suspicion  founded  on  his  own  knowledge  or  the 
information  of  others.^  But  the  slayer  must  show  a  felony 
actually  committed  by  the  deceased,  and  that  he  avowed  his 
object,  and  that  the  deceased  refused  to  submit.^  In  attempt- 
ing to  disperse  an  unlawful  assemblage,  it  is  also  justifiable  to 
kill  if  necessary  to  arrest  the  offender.^  Where  an  attempted 
arrest  is  for  an  ordinary  misdemeanor  or  in  a  civil  action, 
life  can  only  be  taken  by  the  officer  where  the  person  arrested 

1  Clements    i'.  State,  50   Ala.    117  and  others  have  no  right  to  resist  him 

(1873)  ;    Williams  v.   State,  44   Ala.  in   the   performance  of    his  duties  as 

41   (1870);    State    v.   Roane,  2    Dev.  constable;    and  when  such  an  oflScer 

(N.  C.)  L.  581  (1828)  ;  State  v.  Ruther-  is  on   trial  under   an  indictmeilt   for 

ford,  1  Hawks.  (N.  C.)  L.  457  (1821)  ;  murder  for  killing  one  who   had  re- 

s.c.  9  Am.  Dec.  058  ;  State  v.  Garrett,  sisted  him  while  attempting  to  make 

Winst.  (N.  C.)  L.  144  (1863)  ;  s.c.  84  an  arrest,  he  should  be  treated  as  an 

Am.  Dec.  359  ;  Wolf  v.  State,  19  Ohio  officer,  and  the  instruction  to  the  jury 

St.   248    (1869)  ;     United    States    v.  should  proceed  on  the  theory  that  he 

Jailer,    2    Abb.    U.    S.   265    (1867)  ;  is  one.      State  v.  Dierberger,  90  Mo. 

United  States  v.  Rice,  1  Hughes  C.  C.  369  (1886)  ;  s.c.  2  S.  W.  Rep.  286. 
560  (1875)  ;  United  States  v.  Travers  -  §tate  v.  Roane,  2  Dev.  (N.  C.)  L. 

(Mass.)  2   Wheel.   Cr.  Cas.  490,  499,  58  (1828). 

510  (1814)  ;  Reg.  (,'.  Hagan,  8  Car.  &  Asportation,  through  A  country,  of 

P.  167  (1837)  ;  s.c.  34  Eng.  C.  L.  670;  property  stolen   in  B   country,  is  not 

Reg.    V.   Dadson,    2    Den.    C.    C.   35  the   commission    of   a   theft  "in   the 

(1850)  ;    4   Bl.   Comm.   180 ;    1    East  presence  or  within  the  view  "  of  one 

P.  C.  298 ;  2   Hale   P.  C.  85 ;    1   Hale  seeking  without  warrant  to  arrest  the 

P.  C.  498;  3  Co.  Inst.  118,  220,  221.  thief  in  A  country,  and  consequently 

Under   the    Missouri  Constitution,  affords  no   justification    for  shooting 

article    14,  §  6,  requiring   all   ofiicers  the  thief  upon   his   trying  to  escape 

under  the   authority  of   the   state    to  arrest.     Lacy   v.   State,  7    Tex.  App. 

take  an  oath  of  oflSce,  a  deputy  con-  403  (1880). 

stable   regularly  appointed,  who   has  ^  Pond    v.    People,    8    Mich.    150 

not  taken  the  oath  of  office,  is  not  an  (1860).     See  1  Hale  P.  C.  495. 
officer  de  jure,  but  is  an  officer  de  facto, 


216  HOMICIDE.  [chap.  VII. 

resists  by  force,  and  so  endangers  the  life  or  person  of  the 
officer  as  to  make  such  killing  necessary  in  self-defence.^ 

The  light  given  an  officer,  having  the  custody  of  a  prisoner 
convicted  of  a  felony,  to  take  life  to  prevent  the  escape  of  the 
prisoner,  does  not  extend  to  an  officer  attempting  to  re-arrest 
an  escaped  penitentiary  convict.  He  has  only  such  authority 
as  belongs  to  an  ordinary  peace-officer  in  making  an  arrest.^ 

Sec.  188.  Homicide  in  resisting  rescue.  —  The  law  does 
not  clothe  an  officer  with  authority  to  judge  arbitrarily  of 
the  necessity  of  killing  a  person  who  attempts  to  rescue  a 
prisoner.  He  cannot  kill  unless  tliere  is  necessity  for  it,  and 
the  jury  must  determine,  upon  the  testimony,  the  existence 
or  absence  of  the  necessity.^  And  where  an  officer  arresting 
a  person  under  such  circumstances  that  it  is  his  duty  to  take 
him  immediately  before  the  mayor  of  the  town,  proceeds  to 
take  him  to  the  lock-up  instead,  he  will  not  be  justifiable  in 
killing  a  person  who  attempts  to  rescue  the  prisoner,  unless  lie 
was  acting,  in  making  the  arrest  in  that  manner,  according  to 
his  sense  of  right,  and  not  merely  under  a  pretext  of  duty.'^ 

Sec.  189.    Honiicide    in    resisting    arrest. —  One   who   is 

guilty  of  a  felony  has  no  right  to  kill  one  who  pursues  him, 
if  he  has  notice  of  the  object  of  the  pursuit,  whether  the  pur- 
suer be  an  officer  or  a  private  person,  or  whether  he  be  with- 
or  without  a  warrant.*  Thus  the  supreme  court  of  California 
have  said,  in  the  case  of  People  v.  Pool,^  that  the  killing  of  an 
officer  by  one  who  has  committed  a  felony,  while  the  officer  is 
in  fresh  pursuit  of  the  offender,  and  when  he  suddenly  comes 
upon  him  and,  pointing  a  gun  at  him,  says,  "  You  are  my 
prisoner ;  surrender,"  is  not  justifiable  on  the  ground  that  the 
officer  did  not  in  terms  state  his  official  character,  or  the  cause 
of  the  attempted  arrest. 

1  Clements   v.  State,   50   Ala.    117  271;  1  Hale  P.  C.  481 ;  1  Russ.  on  Cr. 

(1873) ;    State    v.    Oliver,    2    Houst.  (5tli  Encr.  ed.)  643. 
(Del.)  585   (1855)  ;    Adams  v.  State,  ^  Wright    v.    State,    44    Tex.  645 

72  Ga.  85   (1883);    State  v.  Garrett,  (1870). 

Winst.  (X.  C.)  L.  144  (1863)  ;  s.c.  84  "  State  y.  Bland,  97  N.C.  438  (1887)  ; 

Am.    Dec.   359;    Rencau   v.   State,   2  s.c.  2  S.  E.  Rep.  460. 
Lea  (Tenn.)  720  (1879);  s.c.  2  Am.  *  People  c.  Pool,  27  Cal.  572  (1865) ; 

Cr.  Rep.  624  ;  United  States  v.  Jailer  State  v.  Mowry,  37  Kan.  369  (1887) ; 

of  Fayette   County,  2  Abb.  U.  S.  265  s.c.  10  Cr.  L.  Mag.  23  ;  15  Pac.  Rep. 

(1867)  ;  Forstcr's  Case,  1  Lew.  C.  C.  282. 
187  (1825)  ;  1  East  P.  C.  302;  Fost.  &  27  Cal.  572  (1865), 


SEC.  189.]  DEFENCES   TO   HOMICIDE.  217 

Every  person  has  a  right  to  resist  an  unhiwful  arrest,  or  an 
arrest  unhiwfully  violent  and  dangerous,  both  wheii  he  is 
arrested  and  after  he  is  in  custody  ;  ^  but  the  resistance  must 
not  be  in  enormous  disproportion  to  the  injury  threatened. 
He  has  no  right  to  kill  to  prevent  a  mere  trespass  whicii  is 
unaccompanied  by  any  innninent  danger  of  great  bodily  harm, 
or  felony,  and  which  does  not  produce  in  his  mind  a  reason- 
able belief  of  such  danger.^  In  determining  the  culpability 
of  a  homicide  committed  in  resisting  a  supposed  unlawful 
arrest,  the  lawfulness  of  the  arrest,  and  not  the  information 
of  the  slayer  respecting  its  legality,  is  the  criterion  in  con- 
nection with  the  cliaracl^r  of  the  means  used  to  effect  the 
arrest,  upon  the  one  hand,  and  those  used  to  resist  it,  upon 
the  other.3 

A  person  has  a  right  to  resist  an  unlawful  arrest  with  such 
force  *  as  may  be  necessary  to  prevent  the  attempted  arrest ; 
and  this  right  of  resistance  continues  throughout  the  unlaw- 
ful detention,  and  may  be  exercised  not  only  by  the  person 
detained,  but  by  another  in  liis  behalf ;  and  a  homicide  result- 
ing therefrom  is  not  culpable.^  Thus  in  Dyson  v.  State  ^  A 
and  B,  his  brother,  were  peaceably  walking  together,  when  C 
rushed  u[)  with  a  drawn  pistol,  and,  with  oaths  and  violence, 
attempted  illegally  to  arrest  A  and  drag  him  before  a  sheriff. 
A  resisted,  a  scuffle  ensued,  C's  pistol  was  discharged,  and  B 
drew  a  pistol  and  killed  C.  The  court  held  that  if  it  reason- 
ably appeared  to  B  that  it  was  necessary  to  kill  C  in  order  to 
liberate  A,  the  homicide  was  a  justifiable  one.  But  where 
one  merely  announces  his  intention  of  arresting  a  person, 
such  person  is  not  justified  in   shooting  him,  although  the 

1  Seams  v.  State,  84  Ala.  410  s  Alford  v.  State,  8  Tex.  App.  545 
(1887);    s.c.  4  So.  Rep.  521;  Nobles     (1880). 

V.  State,  2(5  Ala.  .31  (1855)  ;  Wriglit  v.  *  A  person  guilty  of  a  misdemeanor, 

Commonwealth,  85    Ky.    123   (1887);  and   fired    at    by   a   policeman    while 

s.c.  9  Cr.  L.  Masj.  331 ;  2  S.  W.  Rep.  avoiding   arrest,  may  repel    suoli    at- 

904;  State  v.  Underwood,  75  Mo.  230  tack,  in  self-defence,  by  returning  the 

(1881);  James  v.  State,  44  Tex.  314  fire;  and  if  in   so  doing  he   kills  the 

(1875);    Tiner  v.  State,  44  Tex.   128  officer,  such  killing  is  not  necessarily 

(1875);  Dyson  r.  State,  14  Tex.  App.  unlawful.    Tiner  i-.  State,  44  Tex.  128 

454  (1884);    Alford   v.  State,  8  Tex.  (1875).     Compare  James  v.  State,  44 

App.  545  (1880).  Tex.  314  (1875). 

2  Noles  V.  State,  20  Ala. 31  (1855) ;  ^  Alford  v.  State,  8  Tex.  App.  545 
State     V.     Underwood,     75    Mo.   230  (1880). 

(1881),  e  14  Tex.  App.  454  (1884). 


218  HOMICIDE.  [chap.  VIL 

former's  official  character  is  not  known  to  tlie  latter,  and 
although,  in  fact,  the  arrest  would,  be  unwarrantable.  Other- 
wise, however,  if  the  officer  attempted  to  draw  his  pistol  and 
called  upon  a  third  person  to  shoot  defendant.^ 

In  Wright  v.  Commonwealth  ^  a  party  of  armed  men  went 
in  the  night-time  to  defendant's  house  to  arrest  E.,  an  inmate, 
on  the  charge  of  committing  a  misdemeanor,  without  any 
warrant  for  his  arrest.  After  breaking  down  the  door  and 
firing  into  the  house  the  party  withdrew  a  short  distance  and 
stopped.  On  the  trial  it  was  held  that  the  owner  of  the 
house  and  all  the  inmates,  including  E.,  had  the  right  to  resist 
the  breaking  in  with  all  the  forc^  necessary  to  prevent  it, 
even  to  taking  the  life  of  those  present  aiding  and  assisting, 
as  well  as  those  actually  breaking  and  entering ;  and  that 
after  the  withdrawal  of  the  party  the  owner  was  not  required 
to  flee  from  his  dwelling,  but  has  still  the  right  to  fire  on  any 
member  of  the  party  whom  he  believed,  from  all  the  circum- 
stances, was  about  to  again  forcibly  re-enter  his  house  or  to 
fire  into  it. 

Sec.  190.  Killing-  officer  dispersing-  public  meeting — • 
The  Anarchists'  Case.  —  While  all  persons  have  a  right  law- 
fully and  peaceably  to  meet  and  assemble  for  any  lawful  pur- 
pose, yet  the  mere  fact  that  an  assembly,  whether  its  manner 
or  object  be  lawful  or  otherwise,  is  ordered  by  officers  of  the 
law  to  disperse,  cannot  afford  any  excuse  or  justification  for 
the  wilful  killing  of  such  officers,  or  any  of  them.'^  In  the 
famous  Anarchists'  Case  the  court  say :  "  If  the  police  officers 
had  improperly  intruded  upon  the  meeting  in  question,  such 
intrusion  would  have  furnished  no  justification  for  the  attack 
hereinafter  mentioned.  Persons  injuriously  affected  by  such 
improper  intrusion  or  illegal  dispersion  had  their  remedies  at 
law  for  damages  sustained,  for  they  could  have  demanded  an 
investigation  before  the  proper  authorities,  and,  upon  proving 
their  charges,  could  have  obtained  the  dismissal  of  officers 
guilty  of  infringement  upon  the  rights  of  citizens.     We  can- 

1  State  V.  Underwood,  75  Mo.  230  Case),  122  111.  1  (1887);  .s.c.  3  Am. 
(1881).  St.    liep.   320;    9  Cr.   L.   Mag.   829; 

2  85  Ky.  123  (1887);  s.c.  9  Cr.  L.  0  Am.  Cr.  Rep.  570;  12  N.  E.  Rep. 
Mag.  331 ;  2  S.  W.  Rep.  904.  8G5;  17  N.  E.  Rep.  898. 

^  Spies     V.     People      (Anarchists' 


SEC.  192.]  DEFENCES   TO   HOMICIDE.  219 

not  say,  however,  that  in  view  of  all  the  facts  and  circum- 
stances surrounding  the  occasion,  the  police  officers  were 
justly  chargeable  with  exceeding  their  authority  in  the  prem- 
ises. ...  A  rumor  had  come  to  their  headquarters  tliat  it 
was  the  intention  of  parties  at  the  .  .  .  meeting  to  proceed 
to  some  neighboring  freight-house,  where  non-union  laborers 
were  employed,  and  blow  them  up.  In  addition  to  this,  it 
was  reported  to  the  officer  in  command  of  the  force  .  .  .  that 
the  defendant,  Fielden,  who  was  then  speaking,  had  just 
used  the  following  language :  '  You  have  nothing  more  to  do 
with  the  law  except  to  lay  hands  on  it  and  throttle  it  until  it 
makes  its  last  kick.  .  ,  .  Keep  your  eye  upon  it,  kill  it,  stab 
it,  do  everj'thing  you  can  to  wound  it,'  and  that  the  use  of 
these  words  had  produced  great  excitement,  and  caused  noisy 
demonstrations." 

Sec.  191.    Homicide  because  reward  offered  for  death. 

—  In  time  of  peace  no  person,  who  is  not  guilty  of  a  felony, 
can  lawfully  be  deprived  of  life,  because  of  a  reward  offered 
for  his  death.  Thus  the  supreme  court  of  Minnesota  have 
held  that  it  is  no  justification  of  the  killing  of  an  Indian,  in 
time  of  peace,  that  a  state  officer  had  issued  a  proclamation 
offering  a  reward  therefor.^ 

Sec.  192.    Homicide  in  defence  of  a  woman's  chastity. 

—  While  homicide  committed  under  the  passion  caused  by 
the  knowledge  of  criminal  intimacy  with  a  female  under  the 
protection  or  control  of  the  slayer  is  not  altogether  excusable, 
yet  it  may  be  so,  under  some  circumstances,  when  committed 
to  prevent  such  criminal  intimacy,  or  a  criminal  assault.  Thus 
a  man  may  justifiably  slay  another  if  he  have  reasonable 
ground  to  apprehend  a  design  to  commit  a  felony  on  his 
wife.^  Tt  is  error,  therefore,  to  instruct  the  jury  that  if  the 
deceased  was  killed  by  the  defendant  when  there  was  no 
immediate  danger  to  his  wife,  it  was  manslaughter,  for  the 
statute  expressly  gives  the  man  the  benefit  of  his  apprehen- 
sion.^  If  the  husband  shoot  one  who  has  attempted  the 
seduction  of  his  wife,  it  is  for  the  jury  to  say  whether  the  act 
be  not  justifiable  under  the  statute.     That  the  husband  had 

1  State  y.  Gut,  13  Minn.  341  (18G8).  3  Staten    v.    State,    30    Miss.   619 

2  Hutch.  Code,  957.  (185G). 


220  HOMICIDE.  [chap.  VII. 

a  difficulty  with  the  seducer  at  night  when  he  discovered  the 
attempt,  and  shot  him  the  next  morning  when  he  came  down 
and  sat  by  the  wife  at  breakfast,  does  not  make  the  shooting- 
less  justifiable.^ 

In  Cloud  V.  State,^  there  being  evidence  of  the  deceased's 
criminal  intimacy  with  the  defendant's  wife  ;  that  the  defend- 
ant had  frequently  appealed  to  him  to  let  her  alone  ;  that  the 
deceased  had  repeatedly  followed  her  up,  and  had  just  before 
the  shooting  gone  up  a  dark  alley  with  her  on  his  arm,  it  was 
held  error  to  refuse  an  instruction  that  if  the  killing  was 
necessarily  committed  to  prevent  the  deceased  having  criminal 
intercourse  with  the  defendant's  wife,  it  was  for  the  jury  to  say 
whether  the  killing  comes  under  the  Georgia  statute,^  which, 
after  enumerating  various  causes,  enacts  that  all  other  in- 
stances standing  on  like  footing  of  reason  and  justice  shall 
be  justifiable. 

But  homicide  in  defence  of  a  woman's  chastity  is  not  justi- 
fied by  a  belief  that  the  deceased  had  been  using  fraudulent 
means,  as  bj'^  administering  drugs,  to  effect  a  seduction  not 
accomplished  at  the  time  of  the  killing.*  The  supreme  court 
of  Michigan  say  in  People  v.  Cook^  that  while  the  law  justi- 
fies a  homicide  when  committed  in  defence  of  the  chastity 
either  of  ourselves  or  relations  ,  and  while  it  is  the  duty  of 
every  one  who  sees  a  felony  attempted  by  violence  to  prevent 
it  if  possible,  even  to  taking  life  if  necessary  to  accomplish 
that  purpose,*^  yet  the  felony  in  either  case  must  be  a  forcible 
one.  The  court  continue :  ''  Blackstone  says  the  English 
law  justifies  a  woman  killing  one  who  attempts  to  ravish  her, 
and  so,  too,  the  husband  or  father  may  justify  killing  a  man 
who  attempts  a  rape  on  his  wife  or  daughter ,  but  not  if  he 
takes  them  in  adultery  by  consent,  for  the  one  is  forcible  and 
felonious,  l)ut  not  the  other.  The  principle,  he  '  says,  which 
runs  through  all  laws  seem  to  be  this :  That  where  a  crime 
in  itself  capital  is  endeavored  to  be  committed  by  force,  it  is 
lawful  to  repel  that  force  ])y  the  death  of  the  party  attemj)t- 

1  Biggs  V.  State,  29  Ga.  720  (1800);  ^  People  v.  Cook,  .39  Mich.  230 
s.c.  76  Am.  Dec.  630.  (1878)  ;  s.c.  33  Am.  Hep.  380. 

2  81  Ga.  444  (1888)  ;  s.c.  11  Cr.  L.  ^  39  Mieh.  230  (1878)  ;  s.c.  33  Am. 
Mag.  116  ;  7  S.  E.  l^ep.  641.       '  Rep.  380. 

.       3  Ga.  Code,  §§  4331,  4334.  "  See  Pond  v.  People,  8  IMieli.  177 

(1860)  ;  4  Bl.  Comm.  181. 


SEC.  193.]  DEFENCES   TO    HOMICIDE.  221 

iug.  It  is  not  claimed  that  any  direct  force  was  attempted 
in  this  case,  but  that  the  felony  intended  was  to  be  accom- 
plished by  the  assistance  of  drugs  administered  or  to  be 
administered,  and  that  where  the  power  of  resistance  is  thus 
overcome,  and  advantage  thereof  taken  to  violate  her  person, 
the  act  would  be  rape,  and  for  such  purpose  the  law  would 
conclusively  presume  that  sufficient  force  was  used,  at  the  time 
intercourse  took  place,  so  to  characterize  the  act.  The  present 
case,  however,  falls  short  of  coming  within  the  principles 
which  would  justify  the  taking  of  life.  The  utmost  that  can 
be  here  said  is,  that  the  deceased  had  used  and  was  likely  to 
use  fraudulent  means,  by  administering  drugs,  to  excite  the 
passions,' or  overcome  the  resistance  he  otherwise  would  have 
been  sure  to  encounter,  in  order  to  accomplish  his  purpose. 
So  far  as  he  had  then  gone,  even  conceding  all  tliat  is  claimed, 
fraudulent  and  not  forcible  means  had  been  resorted  to,  which 
would  not  create  that  necessity  for  immediate  action  on  the 
part  of  the  accused,  by  taking  of  life,  to  prevent  an  attempted 
forcible  felony.  Ample  time  and  opportunity  existed  to 
enable  the  accused  to  resort  to  other  available  and  adequate 
means  to  prevent  the  anticipated  injury.  The  evil  threatened 
could  have  been  prevented  by  other  means  within  the  reach 
and  power  of  the  accused.  There  was  no  such  immediate 
danger,  nor  would  the  facts  warrant  the  apprehension  of  such 
immediate  danger,  as  would  justify  a  resort  to  the  means 
adopted." 

Sec.  193.    Killing  one  guilty  of   adultery  with  slayer's 

wife.  —  From  the  most  ancient  times  the  crime  of  adultery 
has  been  looked  upon  as  one  calculated  to  palliate  if  not 
justify  or  excuse  the  act  of  the  outraged  husband  in  slaying 
the  violator  of  his  marital  rights.  By  the  laws  of  Solon,  the 
Athenian  lawgiver,  any  one  might  kill  an  adulterer,  where 
lie  was  found  in  the  act ;  ^  and  the  same  was  true  by  the 
Roman  Civil  Laws,  if  the  adulterer  was  found  in  the  husband's 
house;  and  also  b}'  the  laws  of  the  ancient  Goths  ;^  but  by 
the  common  law  such  a  killing  is  not  ranked  as  a  justifiable 
homicide,    but   manslaughter.'^     It   is,   however,    the    lowest 

1  1  Plutarch's  Lives  (Clough's  trs.)  ^  g^e    State    v.  Harman,  78  N.  C. 

190.  515  (1878). 

3  1  Hale  P.  C.  486. 


222  HOMICIDE.  [chap.  vii. 

degree  of  it,  for  the  law  pays  so  much  regard  to  human 
frailty  as  not  to  put  a  hasty  and  deliberate  act  upon  the  same 
footing  with  regard  to  guilt,  and  therefore  in  such  a  case  the 
court  directed  the  burning  in  the  hand  to  be  gently  inflicted, 
because  there  could  not  be  a  greater  pro  vocation. ^ 

It  is  held  by  the  supreme  court  of  Georgia  in  the  case  of 
Bies's  V.  State,^  that  if  a  man  takes  the  life  of  another  who 
attempts  the  seduction  of  his  wife,  under  circumstances  of 
gross  and  direct  aggravation,  it  is  for  the  jury  to  find  whether 
the  case  stands  upon  the  same  footing  of  reason  and  justice, 
as  other  instances  of  justifiable  homicide  enumerated  in  the 
penal  code  of  that  state ;  also,  that  where  the  injured  hus- 
band meets  one,  the  next  morning,  who  has  attempted,  over 
night,  the  violation  of  his  marriage  bed,  and  fires  upon  him, 
it  is  right  and  proper  to  give  in  evidence  the  previous  occur- 
rence as  a  justification  or  excuse  for  the  act.  In  Staten  v. 
State,^  the  supreme  court  of  Mississippi  held  that  a  person 
may  justifiably  slay  another,  if  he  have  reasonable  ground  to 
apprehend  a  design  on  the  part  of  the  latter  to  commit  a 
felony,  or  do  some  great  personal  injury  to  his  wife,  and 
there  shall  be  imminent  danger  of  such  design  being  accom- 
plished; and  that  this  right  of  defence  extends  not  only 
to  the  life  of  the  wife,  but  to  her  chastity  also.  While 
the  killing  of  a  person  taken  in  the  act  of  adultery  with  the 
slayer's  wife  is  manslaughter  at  common  law,  yet  there  are 
some  statutes  which  excuse  it  altogether.  Thus  the  Texas 
Penal  Code  makes  homicide  justifiable  when  committed  by 
the  husband  on  one  "  taken  in  the  act  of  adultery  "  Avith  the 
wife,  provided  the  killing  takes  place  before  the  parties  to 
the  act  of  adultery  have  separated.* 

Sec.  194.  Homicicle  from  necessity.  —  Homicide  from 
necessity  may  be  defined  as  the  killing  of  one  of  two  or  more 


^  State  V.  Harnian,   78   N.   C.   515  lowed    and   found   his  corn-pen   door 

(1878).       See    Manning's   Case,    Ld.  open.      His  wife  came  out  and   said 

Raym.  212  (1<)72)  ;  4  Black.  101-2.  no  one  was  there,  then  A.  came  out, 

-  2!)  Ga.  72:3  (18G0).  and  tiie  husband  shot  lum.    The  court 

3  30  Miss.  010  (185(5).  hehl    that    the   case    was    within    the 

*  A    husband    suspected    his    wife  Texas    Penal    Code.     Price   v.    State, 

and  A.     His  wife  left  his  house  one  18  Tex.  App.  474  (1885)  ;  s.c.  51  Am. 

night,   and    soon    afterwards    he    fol-  Rep.  322 ;  6  Am.  Or.  Rep.  385. 


SEC.  195.]  DEFENCES   TO   HO^nCIDE.  223 

persons  b}^  others,  where  it  is  apparent  or  extremely  probable 
that  the  lives  of  all  cannot  be  saved.^  Homicides  of  this 
character  can  only  be  excused  in  cases  of  the  direst  necessity, 
and  only  when  the  life  of  one  must  be  sacrificed.  In  such 
cases  as  shipwreck  and  extreme  peril  resulting  therefrom, 
seamen  have  no  right  to  sacrifice  the  lives  of  passengers  for 
the  sake  of  preserving  their  own  ;  but  all  occupy  like  posi- 
tions, and  a  decision  by  lot  is  to  be  resorted  to,  unless  the 
peril  is  so  instant  and  overwhelming  as  to  leave  no  choice  of 
means  and  no  moment  for  deliberation.^  Thus  if  two  ship- 
wrecked persons  get  upon  the  same  plank,  and  one  of  them, 
finding  the  plank  not  able  to  save  them  both,  thrust  the 
other  from  it,  and  thereby  he  is  drowned,  the  homicide  is 
excusable ;  ^  but  if  there  be  time  for  any  impartial  choice  of 
the  persons  to  be  sacrificed,  such  choice  must  be  made.2 
In  the  case  of  United  States  v.  Holmes,^  a  vessel,  of  which 
defendant  was  a  seaman,  was  wrecked,  and  the  passengers 
and  crew  took  to  the  boats  as  the  only  means  of  safet3^  The 
boat  which  carried  defendant  being  heavily  laden,  and  the 
waves  running  high,  it  became  apparent  that  it  was  in  great 
danger  of  sinking,  unless  its  load  was  lessened ;  and  defend- 
ant, together  with  the  (>tlier  sailors,  proceeded  to  throw 
overboard  passengers,  until  it  appeared  that  sufficient  weight 
had  -been  removed.  It  was  held  that  the  choice  of  those 
whose  sacrifice  was  necessary  to  the  safety  of  the  others 
should  have  been  made  by  lot ;  and  the  defendant  was  con- 
victed under  the  indictment,  which  was  for  manslaughter, 
and  sentenced  to  a  light  imprisonment. 

Sec.  195.    Same  —  The  Migrnonnette  Case.  — In- the  now 

famous  jMignonnette  Case  ^  two  sailors  were  on  trial  for  the 
homicide  of  a  boy,  when  all  three  were  starving  in  a  boat  at 
sea.  The  court,  in  charging  the  grand  jury,  said:  "It  is 
impossible  to  say  that  the  act  of  Dudley  and  Stephens  was 
an  act  of  self-defence.     Parker,  at  the  bottom  of  the  boat, 

1  See   4   Bl.   Comm.    186;   Whart.  3  4  bI.  Comm.  186. 

Horn.  (2d  cd.)  558;  1  Whart.  Cr.  L.  *  1  Wall.,  Jr.,  C.  C.  1  (1842). 

(9th  ed.)  §  511  ;  Can.  II,  Dist.  I,  de  ^  Reg.  v.  Dudley,  L.  R.  14  Q.  B. 

Consecrat.  Div.  273  (1884)  ;  s.c.  5  Am.  Cr.  Rep. 

2  United  States  v.  Holmes,  1  Wall.,  559;  6  Cr.  L.  Mag.  361  ;  31   Alb.  L. 
Jr.,  C.  C.  1  (1842).  J.  36. 


224  HOMICIDE.  [chap.  VII. 

was  not  endangering  tlieir  lives  b}^  an}-  act  of  his.  The  boat 
could  hold  them  all,  and  the  motive  for  killing  him  was  not 
for  the  purpose  of  lightening  the  boat,  but  for  the  purpose 
of  eating  him,  which  they  could  do  Avlien  he  was  dead,  but 
not  while  living.  What  really  imperilled  their  lives  was  not 
the  presence  of  Parker,  but  the  absence  of  food  and  drink. 
It  could  not  be  doubted  for  a  moment  that  if  Parker  was 
possessed  of  a  weapon  of  self-defence,  —  say,  a  revolver, — 
he  would  have  been  perfectly  justified  in  taking  the  life  of 
the  captain,  who  was  on  the  point  of  killing  him,  which 
shows  clearly  that  the  act  of  the  captain  was  unjustifiable. 
It  may  be  said  that  the  selection  of  the  boy  —  as  indeed 
Dudley  seems  to  have  said  —  was  better,  because  his  stake 
in  society,  having  no  children  at  all,  was  less  than  theirs ; 
but  if  such  reasoning  is  to  be  allowed  for  a  moment,  Cicero's 
test  is  that  under  such  circumstances  of  emergency  the  man 
who  is  to  be  sacrificed  is  the  man  who  would  be  the  least 
likely  to  do  benefit  to  the  republic ;  in  which  case,  Parker, 
as  a  young  man,  might  be  likely  to  live  longer,  and  be  of 
more  service  to  the  republic  than  the  others.  Such  reasoning 
must  be  always  more  ingenious  than  true.  Nor  can  it  be 
urged  for  a  moment  that  the  state  of  Parker's  health,  which 
is  alleged  to  have  been  failing  in  consequence  of  his  drinking 
the  salt  water,  would  justify  it.  No  jjerson  is  permitted, 
according  to  the  law  of  this  country,  to  accelerate  the  death 
of  another.  Besides,  if  once  this  doctrine  of  necessity  is  to 
be  admitted,  why  was  Parker  selected  rather  than  any  of  the 
other  three  ?  One  would  have  imagined  that  his  state  of 
health,  with  the  misery  in  which  he  was  at  the  time,  would 
liave  obtained  for  him  more  consideration  at  their  hands. 
However,  it  is  idle  to  lose  oneself  in  speculations  of  this 
description.  I  am  bound  to  tell  you  that  if  you  are  satisfied 
that  the  boy's  death  was  caused  or  accelerated  by  the  act  of 
Dudley,  or  Dudley  and  Stephens,  this  is  a  case  of  deliberate 
liomicide,  neither  justifiable  nor  excusable,  and  tlie  crime  is 
murder,  and  you,  therefore,  ought  to  find  a  true  bill  for 
murder  against  one  or  l)oth  of  the  pi'isoners."  ^ 

1  The  clef cndnnts  were  indicted  and     commuted    to    imprisonment    for     a 
convicted  of  murder  and  sentenced  to     period  of  six  months, 
be  hanged  ;  but  their  punishment  was 


SEC.  198.]  DEFENCES   TO   HOMICIDE.  225 

Sec.  196.  Homicide  from  eominilsion.  —  "While  the  prin- 
ciple that  an  act  done  involuntarily  and  under  duress  or  com- 
pulsion places  no  responsibility  upon  the  person  so  doing  it, 
but  only  upon  the  person  commanding  it  to  be  done,  applies 
to  crimes  of  homicide  as  well  as  all  other  offences,  yet  the 
mere  fear  of  threatened  violence  cannot  excuse  a  man  for  a 
homicide  at  the  instance  of  another  man.i  And  the  same  is 
true  where  the  slayer  is  under  the  lawful  authority  of  the 
person  committing  the  act  of  killing,  for  he  is  bound  to  obey 
oidy  the  lawful  orders  of  his  superior.  But  the  wilful  killing 
of  a  soldier  by  the  sergeant  of  the  guard,  while  on  his  duty, 
is  not  necessarily  a  justifiable  homicide,  because  a  soldier  is 
bound  to  obey  only  the  lawful  orders  of  his  superior  officers, 
and  an  order  of  a  superior  military  officer  to  an  inferior  will 
not,  of  itself,  justify  the  wilful  killing  of  another.^  It  is  said, 
however,  in  the  case  of  United  States  v.  Clark,^  that  if  a 
homicide  be  committed  liy  a  military  guard  without  malice, 
and  in  the  performance  of  his  supposed  dut}^  as  a  soldier,  such 
homicide  is  excusable,  unless  it  was  manifestly  beyond  the 
scope  of  his  authority,  or  was  such  that  a  man  of  ordinary 
sense  and  understanding  would  know  that  it  was  illegal. 

Sec.  197.  Existence  of  war.  —  The  existence  of  war  is  no 
excuse  for  a  homicide,  unless  both  the  slayer  and  the  slain  be 
in  a  state  of  actual  open  warfare  at  the  time  of  its  commis- 
sion.* Thus  the  plea  of  an  Indian  war  cannot  avail  to  secure 
immunity  for  acts  of  treachery  and  murder  committed  by 
individual  Indians  belonging  to  tribes  not  engaged  in  the 
war,  living  among  the  whites,  and  in  a  part  of  the  country 
not  involved  in  hostilities.^  In  the  case  of  State  v.  Gut,^ 
upon  the  trial  of  a  person  charged  with  murder,  it  was  held 
to  be  no  defence  that  the  deceased  belonged  to  a  tribe  of 
Indians  with  whom  war  existed,  the  deceased  being  a  pris- 
oner at  the  time. 

Sec.  198.  Homicide  by  accident  and  mistake.  —  No  guilt 
attaches  to  a  person  who,  when  doing  a  lawful  act,  uncon- 

1  Reg.  V.  Tyler,  8  Car.  &  P.  G16  3  31  Fed.  Rep.  710  (1887). 
(1838)  ;   s.c.  3-4  Eng.   C.  L.   (uncon-  *  See  supra,  §  19,  and  eh.  Murder, 
densed  ed.)  923,  (condensed  ed.)   553.  ^  jim  v.  Territory,  1  Wash.  Tr.  76. 

2  United  States  v.  Carr,  1  Wood  C.  ^  1.3  Minn.  3il  (18G8). 
C.  480  (1872). 

15 


226  HOMICIDE.  [chap.  Vil. 

sciously  and  non-negligently  kills  another.^  Thus  where  a 
person  is  indicted  for  murder  in  the  first  degree,  and  on  the 
trial  there  is  evidence  tending  to  show  that  the  deceased  came 
to  his  death  from  the  discharge  of  a  pistol,  at  the  time  in  the 
hands  of  the  defendant,  hut  which  pistol  was  not  intention- 
ally pointed  or  aimed  at  the  deceased  by  the  defendant,  or 
voluntarily  discharged  by  him,  but  that  these  facts  were 
entirely  accidental,  and  without  fault  on  the  part  of  the 
defendant,  and  while  he  was  not  in  the  commission  of  an  un- 
lawful act,  it  is  the  duty  of  the  court,  on  the  request  of  the 
defendant,  to  charge  the  jury  that  if  such  a  state  of  the  case 
was  shown,  he  cannot  be  found  guilty  of  any  offence  under 
said  indictment.^ 

If  one  points  a  loaded  gun  at  another  under  circumstances 
which  would  not  justify  shooting  him,  and  the  one  aimed  at 
seizes  and  struggles  for  it  to  save  himself  from  the  menaced 
injury  from  it,  and  in  the  struggle  the  gun  is  accidently  dis- 
charged, causing  the  death  of  the  person  aimed  at,  the'  one 
pointing  the  gun  cannot  claim  that  the  homicide  was  excusa- 
ble, although  it  would  be  otherwise  if  the  circumstances 
Avould  justify  the  shooting.^  Thus  it  has  been  held  that 
where  a  party  points  a  pistol  at  another  in  an  angry  manner, 
and  the  pistol  goes  off,  causing  death,  there  is  nothing  to 
warrant  a  plea  of  accidental  killing.*  But  in  Aaron  v.  State/* 
where  R.  and  J.  quarrelled,  J.  drew  a  knife,  and  R.  drew  a 
pistol,  and  while  his  eyes  were  fixed  on  J.,  who  had  advanced 
toward  him,  the  pistol  was  discharged  accidently,  and  killed 
a  bystander,  who  had  been  restraining  R.  before  he  drew  the 
pistol,  but  had  released  him,  the  supreme  court  of  Georgia 
on  appeal  held  that  tlie  homicide  was  excusable. 

The  general  rule  that  one  defending  himself  from  bodily 
harm  apparently  threatened  by  anothel-  is  not  liable  for  acci- 

1  State  V.  Dutjan,  1  Houst.  Cr.  Cas.  L.  Mn<i.  50,  127;    4   Bl.  Coniin.  188; 

(Del.)  500  (1870);    Aaron  r.  State,  31  1  Kiiss.  on  Cr.  (5th  Eng.  ed.)  (550. 

Ga.  167   (1800)  ;  .S'/«/e  v.  Bniham,  23  -'  Williamson  v.  State,  2  Ohio  Cir. 

Iowa,   154   (1807);   s.c.  02    Am.  Dec.  Ct.  Kep.  202  (1888). 

417;    Ayres    v.    State,    00    Miss.    700  =^  State    c.  Benham,  23    Iowa,    154 

(1883)  ;    Williamson  v.  State,  2  Ohio  (1807)  ;  S.c.  02  Am.  Dec.  410. 

Cir.  Ct.  Rep.  202  (1888)  ;  Plummer  v.  <    State  v.  Dugan,  1  Houst.  Cr.  Cas. 

State,  4  Tex.  App.  310  (1878)  ;  s.c.  30  (Del.)  503  (1870). 

Am.  Hep.  105;  United  States  i:  Clark,  »  31  Ga.  107  (1860). 
^1  Fed.  liep.  710  (1887);  s.c.  10  Cr. 


SEC.  199.] 


DEFENCES    TO    HOMICIDE. 


227 


dentally  injuring  a  third  person  applies  to  the  act  of  a  special 
officer  shooting  the  wife  of  a  pei"Son  who,  in  darkness,  was 
resisting  arrest  by  shooting.^ 

Sec  199.  Homicide  while  insane.  —  The  insanity  which 
will  exempt  from  punishment  a  person  who  commits  a  homi- 
cide, consists  in  such  a  depraved  and  deranged  condition  of 
the  mental  and  moral  faculties  as  to  render  him  incapable  of 
distinguishing  between  right  and  wrong  Avith  respect  to  that 
particular  act,  and,  therefore,  unconscious  of  its  criminal 
nature.  The  insanity  and  the  act  of  killing  must  be  con- 
nected, and  the  latter  must  be  the  offspring  of  the  former.'-^ 
If  the  defendant  knew  the  act  to  be  wrong,  it  is  no  excuse 
that  he  was  driven  to  it  by  the  irresistible  impulse  arising 
from  an  insane  delusion ;  ^  neither  is  it  an  excuse  that 
the  reason  was  temporarily  dethroned  merely  by  passion  or 
revenge  or  uncontrollable  frenzy."^ 

Insanity  never  operates  as  any  mitigation  of  a  homicide,  as 
it  goes  only  to  the  punishment  and  not  to  the  character  of 


1  riummer  v.  State,  4  Tex.  App. 
310  (1878)  ;  s.c.  30  Am.  Rep.  16o. 

2  Williams  v.  State,  50  Ark.  511 
(1888)  ;  s.c.  9  S.  W.  Rep.  5 ;  State  v. 
Reidell  (Del.),  14  Atl.  Rep.  550 
(1888)  ;  State  v.  Hockett,  70  Iowa, 
442  (1886) ;  s.c.  9  Cr.  L.  Mag.  208  ; 
.30  N.  W.  Rep.  742 ;  Stute  v.  Moicrti, 
37  Kan.  369  (1887)  ;  s.c.  10  Cr.  L. 
Mag.  23;  15  Pac.  Rep.  282;  Bovard 
V.  State,  .30  Miss.  600  (1856)  ;  State 
r.  Erb,  74  Mo.  199  (1881)  ;  s.c.  Law. 
Insan.  10  ;  State  v.  Meileineier,  71  Mo. 
173  (1879);  s.c.  8  Mo.  App.  1;  36 
Am.  Rep.  462;  1  Cr.  L.  Mag.  456; 
Law.  Insan.  424  ;  State  v.  Huting,  21 
Mo.  464  (1855)  ;  Baldwin  ?.  State, 
12  Mo.  223  (1848)  ;  s.c.  Law.  Insan. 
395  ;  Flanagan  v.  People,  52  N.  V.  4()7 
(1873)  ;  s.c.  11  Am.  Rep.  731 ;  1  Green 
Cr.  Rep.  377  ;  State  v.  Haywood, 
Pliill.  (N.  C.)  L.  376  (1867)  ;  Cole's 
Trial,  7  Abb.  (N.  Y.)  Pr.  N.  S.  321 
(1868)  ;  People  v.  Kleim,  1  Edm.  Sel. 
Cas.  (N.  Y.)  13  (1845)  ;  Dove  v. 
State,  3  Heisk.  (Tenn.)  318  (1872); 
s.c.  1  Gr.  Cr.  Rep.  760  ;  Law.  Insan. 
502;  Leache  v.   State,  22  Tex.   App. 


279  (1886);  s.c.  58  Am.  Rep.  638;  3 
S.  W.  Rep.  539 ;  Clark  i:  State,  8  Tex. 
A])p.  3.50  (1880)  ;  Dejarnette  v.  Com- 
monwealth, 75  Va.  867  (1881)  ;  s.c. 
Law.  Insan.  18 ;  United  States  v. 
McGlue,  1  Curt.  C.  C.  1  (1851)';  s.c. 
2  Cr.  Def.  54. 

3  State  r.  Mowry,  37  Kan.  369 
(1887)  ;  s.c.  10  Cr.'  L.  Mag.  23;  15 
Pac.  Rep.  282;  State  v.  Nixon,  .32 
Kan.  205  (1884)  ;  s.c.  5  Am.  Cr.  Rep. 
307;  4  Pac.  Rep.  159 ;  State  i-.  Pagels,  92 
Mo.  300  (1887) ;  s.c.  4  S.  W.  Rep.  931. 
Compare  Stevens  v.  State,  31  Ind.  485 
(1869)  ;  s.c.  99  Am.  Dec.  6.34  ;  2  Cr. 
Def.  87  ;  State  r.  Mewherter,  46  Iowa, 
88  (1877);  s.c.  2  Cr.  Def.  102;  State 
r.  Felter,  25  Iowa,  67  (1868)  ;  s.c.  2 
Cr.  Def.  92. 

•*  Williams  v.  State,  50  Ark.  511 
(1888);  s.c.  9  S.  W.  Rep.  5;  Guetig 
r.  State,  66  Ind.  94  (1879)  ;  s.c.  32 
Am.  Hep.  99;  Law.  Insan.  455;  San- 
ders V.  State,  94  Ind.  147  (1883)  ; 
State  V.  Stickley,  41  Iowa,  232  (1875); 
s.c.  2  Cr.  Def.  108;  Cole's  Trial,  7 
Abb.  (N.  Y.)  Pr.  N.  S.  321  (1868). 


228  HOMICIDE.  [chap.  VII. 

the  act  itself ;  and  its  only  effect  is  to  exempt  the  slayer  from 
the  punishment  prescribed  for  the  homicide,  without  exonerat- 
ing him  from  the  charge  of  committing  it.^  In  the  case  of 
United  States  v.  Lee  ^  the  court  said  that,  "  If  the  prisoner 
was  so  far  incapable  of  distinguishing  between  right  and 
wrong  as  to  be  guilty  of  the  crime  of  manslaughter,  he  surely 
was  capable  of  distinguishing  between  right  and  wrong  in 
respect  to  the  crime  of  murder  of  the  identical  party.  There 
can  be  no  recognition  of  the  doctrine  that  a  man  is  incapable 
of  distinguishing  between  right  and  wrong  so  as  to  determine 
that  the  case  is  not  a  case  of  murder,  and  yet  capable  of  dis- 
tinguishing between  right  and  wrong  so  as  to  be  guilty  of 
manslaughter.  There  is  no  such  doctrine  and  nothing  in  the 
books  that  favor  such  idea." 

But  in  the  case  of  Anderson  v.  State  ^  the  supreme  court 
of  Connecticut  held  that  although  the  total  lack  of  responsi- 
bility on  the  ground  of  insanity  be  not  taken,  yet  if  the  pris- 
oner's mind  Avas  so  far  deranged  as  to  render  him  incapable 
of  a  deliberate,  premeditated  murder,  he  should  be  convicted 
only  of  murder  in  the  second  degree. 

If  derangement  or  imbecility  be  proved  or  admitted  at  any 
particular  period,  it  is  presumed  to  continue  until  disproved, 
unless  the  derangement  was  accidental,  being  caused  by  the 
violence  of  a  disease.  But  this  presumption  is  rather  a  mat- 
ter of  fact  than  of  law,  or  at  most,  partly  of  fact  and  partly 
of  law.  No  presumption  of  continuity  obtains  in  cases  of 
recurrent,  fitful,  and  exceptional  attacks  of  insanity.  On  the 
contrary^  the  rule  prevails  that  if  an  insane  person  has  lucid 
intervals,  the  law  presumes  the  offence  of  such  a  person 
to  have  been  committed  in  a  lucid  interval,  unless  it  appears 
to  have  been  committed  in  the  time  of  his  distemper.'* 

Sec.  200.  Same — Uncontrollable  impulse. — Whether  or 
not  an  insane  delusion  or  an  uncontrollable  impulse  will 
relieve  from  responsibility  for  a  homicide  in  those  cases  where, 

1  United  States  v.  Lee,  4  Mackey  3  43  Conn.  514  (187(1)  ;  s.c.21  Am. 
(D.  C.)  489  (1880)  ;  s.c.  54  Am.  Kep.     Rop.  (iOO ;  2  Cr.  Dcf.  120. 

293.      Compare  Andersen  v.  Stnte,  43  ■*  Leache   v.    State,   22   Tex.    App. 

Conn.  514  (187G)  ;  s.c.  21  Am.  Kep.  279  (1880)  ;  s.c.  58  Am.  Rep.  038;  3 
669;  2  Cr.  Def.  129.  S.  W.  Rep.  539. 

2  4  Mackey   (D.  C.)    489    (1880)  ; 
s.c.  54  Am.  Rep.  293. 


SEC.  200.]  DEFENCES   TO    HOMICIDE.  229 

if  the  fancied  state  of  facts  had  existed  the  killing  would 
have  been  justifiable,  is  an  unsettled  question ;  but  it  is 
thought  that  the  weight  of  authority  and  reason  is  in  the 
alhrmative.  In  the  case  of  State  v.  Nixon  ^  the  supreme 
coiut  of  Kansas  say  that,  "  It  is  possible  that  an  insane 
impulse  is  sometime  sufficient  to  destroy  criminal  responsi- 
bility, but  this  is  probably  so  only  when  it  destroys  the  power 
of  the  accused  to  comprehend  rationally  the  true  nature, 
character,  and  consequences  of  the  particular  act  or  acts 
charged  against  him,  and  not  where  the  accused  still  has 
the  power  of  knowing  the  character  of  the  particular  act  or 
acts,  and  that  they  are  wrong.  .  .  .  The  law  will  hardly 
recognize  the  theory  that  any  uncontrollable  impulse  may  so 
take  possession  of  a  man's  faculties  and  powers  as  to  compel 
him  to  do  what  he  knows  to  be  wrong  and  a  crime,  and 
thereby  remove  him  from  all  criminal  responsibility.  When- 
ever a  man  understands  the  nature  and  character  of  an  act, 
and  knows  that  it  is  wrong,  it  would  seem  that  he  ought  to 
be  held  legally  responsible  for  the  commission  of  it,  if  in  fact 
he  does  commit  it."  But  in  Boswell  v.  State  ^  it  was  held  that 
the  defence  of  insane  delusion  may  prevail  when  the  imaginary 
state  of  facts  would  justify  or  excuse  the  act  if  it  was  real. 

It  seems  that  before  a  grand  jury  can  properly  acquit  on 
the  ground  of  insanity,  it  must  appear  that  at  the  time  of  the 
commission  of  the  offence  the  accused  was  affected  with  in- 
sanity to  such  a  degree  as  to  create  an  uncontrollable  impulse 
to  do  the  act  charged,  overriding  his  reason  and  judgment.^ 
In  State  v.  Jones,*  where  tlie  authorities  are  fully  and  ably 
discussed,  it  is  held  that  there  is  no  legal  test  of  insanity  in 
a  case  of  homicide,  and  the  court  sustained  an  instruction  to 
the  effect  that  if  the  defendant  committed  the  act  in  a  manner 
that  would  be  criminal  and  unlawful  if  the  defendant  were 
sane,  the  verdict  should  be  "  not  guilty  by  reason  of  insanity," 
if  the  killing  was  the  offspring  or  product  of  mental  disease 
in  the  defendant.^ 


132  Kan.  205  (1884);  s.c.  5  Am.  (1886);  s.c.  6  Am.  Or.   Rep.  4G1 ;  6 

Cr.  Rep.  307  ;  4  Pac.  Rep.  159.  N.  E.  Rep.  165. 

2  63  Ala.  307  (1879) ;  s.c.  35  Am.  *  50  N.  H.  369  (1871)  ;  s.c.  9  Am. 
Rep.  20  ;  Law.  Insan.  352.  Rep.  242  ;  2  Cr.  Def.  64. 

3  Dacey    v.   People,    116    111.    555  ^  An    instruction    that    "the    term 


230 


HOMICIDE. 


[chap.  VII. 


Sec.  201.  Same  —  Moral  insanity.  —  Moral  insanity,  which 
consists  of  irresistible  impulse  co-existing  with  mental  sanity, 
is  not  supported  either  in  psychology  or  in  law ;  ^  yet  it  has 
been  held  that  a  homicidal  mania  may  constitute  a  valid 
defence  to  the  charge  of  murder.  So  long  as  the  sense  of 
guilt  or  of  the  quality  of  the  act  remains  mere  mental  weak- 
ness where  noraially'^  or  temporarily  induced  by  peculiar 
circumstances,"*^  or  loss  of  money,'*  is  no  defence. 

The  supreme  court  of  Michigan,  in  the  case  of  People  v. 
Finley,^  say  that  "one  who  indulges  that  convenient  form  of 
insanity  which  lasts  just  long  enough  to  enable  him  to  com- 
mit an  act  of  violence  is  just  as  responsible  for  his  condition 
as  a  drunken  man  is."  But  a  homicidal  mania  must  not  be 
confounded  with  reckless  frenzy  ;  and  it  should  be  shown  to 
have  evinced  itself  in  more  than  a  single  instance.*' 

Sec.  202.    Voluntary  intoxication  as  a  defence.  —  An  act 

is  none  the  less  a  crime  because  the  person  perpetrating  it 
happened  to  be  in  a  state  of  intoxication  at  the  time,^  because 


'  insanity,'  under  tlie  statutes  of  tlie 
state,  includes  every  species  of  organic 
mental  derangement,  whether  of  a  mild 
or  violent  form,  and  excludes  every 
other  condition  of  mind  ;  and  it  fol- 
lows that  in  our  state,  as  regards  their 
mental  condition  in  those  respects, 
we  have  but  two  classes  of  people, 
the  sane  and  the  insane.  Actual  in- 
sanity is,  consequently,  with  us,  a 
defence,  and  not  a  mitigating  circum- 
stance in  a  prosecution  for  crime." 
Being  more  favorable  to  the  accused 
than  the  law  warrants,  he  has  no 
cause  to  complain.  Warner  v.  Stale, 
114  Ind.  137  (1887);  s.c.  16  N.  E. 
Rep.  189. 

1  Boswell  V.  State,  G3  Ala.  307 
(1879)  ;  s.c.  35  Am.  Rep.  20 ;  Law. 
Insan.  352.  See  State  v.  Brandon,  8 
Jones  (N.  C.)  L.  403  (1862)  ;  s.c. 
Law.  Insan.  144 ;  People  v.  Finley, 
38  Mich.  482  (1878).  Compare  Ander- 
son V.  State,  43  Conn.  514  (1876)  ; 
s.c.  21  Am.  Rep.  669;  2  Cr.  Def.  129; 
Scott  V.  Commonwealth,  4  Met.  (Ky.") 
227  (1863);  s.c.  83  Am.  Dec.  461;  2 
Cr.    Def.    130;    Lynch    v.    Common- 


wealth, 77  Pa.  St.  205  (1874);  s.c. 
Law.  Insan.  146. 

2  Fitzpatrick  v.  Commonwealth,  81 
Ky.  357  (1883). 

^  Weakness  of  mind  and  fear  and 
excitement  caused  by  the  deceased  to 
such  an  extent  that  the  defendant  did 
not  know  wliat  the  effect  of  his  act 
would  be  with  reference  to  the  crime 
of  murder,  are  no  defences.  People 
V.  Hurley,  8  Cal.  390  (1857). 

"  State  r.  Stark,  1  Strobh.  (S.  C.) 
L.  479  (1817). 

5  38  Mich.  482  (1878). 

'^  Coyle  r.  Commonwealth,  100  Pa. 
St.  573  "(1882)  ;  s.c.  45  Am.  Rep.  397  ; 
4  Cr.  L.  Mag.  76;  Law.  Insan.  441. 

'  State  V.  Hurley,  1  Iloust.  Cr.  Rep. 
(Del.)  28  (1858)  ;  Hanvey  v.  State, 
68  Ga.  612  (1882)  ;  Pearson's  Case,  2 
Lew.  C.  C.  144  (1835)  ;  Rex  v. 
Thomas,  7  Car.  &  P.  817  (18.36)  ;  s.c. 
.32  Eng.  C.  L.  889  ;  Reg.  v.  Gamlen, 
1  Fost.  &  F.  90  (1858). 

It  neither  excuses  nor  justifies 
crime.  — Scott  r.  State,  12  Tex.  App. 
31  (1883)  —although  the  result  of  an 
irresistible   appetite   overcoming    the 


SEC.  202.] 


DEFENCES   TO    HOMICIDE. 


231 


voluntary  intoxication  is  not  an  excuse  for  crinie,^  much  less 
a  defence  to  a  homicide  committed  while  in  that-  state  or 
condition,"^  even  in  those  cases  where  the  intoxication  is  to 


will,  and  amounting  to  a  disease,  — 
Flanigan  v.  People,  86  N.  Y.  554 
(1881);  s.c.  40  Am.  Rep.  556,  —  unless 
tiie  act  was  comuiitted  from  insanity 
])n)duced  thereby.  State  v.  Paulk,  18 
S.  C.  514  (1882). 

1  McKenzio  i\  State,  26  Ark.  .335 
(1870);  s.c.  Law.  Insan.  533;  Mix 
V.  McCoy,  22  Mo.  App.  488  (1886)  ; 
Kenny  v.  People,  31  N.  Y.  330 
(1865) ;  s.c.  Law.  Insan.  562  ;  State  v. 
Bundy,  24  S.C.  439  (1885);  Pear- 
son's Case,  2  Lew.  C.  C.  144  (1835). 
See  Law.  Insan.  533-768. 

-  Morrison  v.  State,  84  Ala.  405 
(1888)  ;  s.c.  4  So.  Rep.  402  ;  Gunter 
V.  State,  83  Ala.  96  (1888);  s.c.  10 
Cr.  L.  Mag.  428;  3  So.  Rep.  600; 
Williams  v.  State,  81  Ala.  1  (1886)  ; 
s.c.  60  Am.  Rep.  133;  Tidwell  v. 
State,  70  Ala.  33  (1881);  Beusleij  v. 
State,  .50  Ala.  149  (1873)  ;  s.c.  20 
Am.  Rep.  292 ;  Law.  Insan.  577  ; 
McKenzie  v.  State,  26  Ark.  335 
(1870)  ;  s.c.  Law.  Insan.  533  ;  People 
V.  Langton,  67  Cal.  427  (1885)  ;  s.c.  7 
Pac.  Rep.  843  ;  People  v.  Williams, 
43  Cal.  344  (1872)  ;  s.c.  1  Gr.  Cr.  Rep. 
412;  State  i'.  Hurley,  1  Houst.  Cr. 
Cas.  (Del.)  28  (1858)  ;  Estes  c.  State, 
55  Ga.  31  (1875)  ;  Choice  v.  State, 
31  Ga.  424  (1860)  ;  s.c.  Law.  Insan. 
5.38;  Jones  r.  State,  29  Ga.  594 
(1860)  ;  s.c.  Law.  Insan.  612;  Golden 
V.  State,  25  Ga.  527  (1853);  Sanders 
V.  State,  94  Ind.  147  (1883)  ;  State  v. 
Sopher,  70  Iowa,  494  (1886)  ;  s.c.  9 
Cr.  L.  Mag.  218;  30  N.  W.  Rep.  917  ; 
State  V.  ilowrii,  37  Kan.  369  (1887)  ; 
s.c.  10  Cr.  L.  Mag.  23;  15  Pac.  Rep. 
282 ;  Shannahan  v.  Commonwcaltli, 
8  Bush  (Ky.)  463  (1871);  s.c.  8 
Am.  Rep.  465;  Law.  Insan.  557; 
Blimm  v.  Commonwealth,  7  Bush 
(Ky.)  320  (1870)  ;  s.c.  Law.  Insan. 
675  ;  Kriel  v.  Commonwealth,  5  Bush 
(Ky.)  .362  (1869) ;  s.c.  Law.  Insan. 
379;  Smith  v.  Commonwealth,  1  Duv. 
(Ky.)  224  (1864)  ;   s.c.  Law.   Insan. 


669;  People  r.  Finley,  38  Mich.  482 
(1878) ;  State  v.  Edwards,  70  Mo.  480 
(1879)  ;  State  i-.  Cross,  27  Mo.  332 
(1858);  s.c.  Law.  Insan.  619;  State  v. 
Harlow,  21  Mo.  446  (1855);  Kenny 
V.  People,  31  N.  Y.  336  (1865); 
s.c.  Law.  Insan.  562;  People  v. 
Rogers,  18  N.  Y.  9  (1858);  s.c. 
72  Am.  Dec.  484;  Law.  Insan.  624; 
Friery  v.  People,  54  Barb.  (N.  Y.) 
319  (1865)  ;  affirmed  in  2  Keyes 
(N.  Y.)  424;  People  v.  Hammill,  2 
Park.  Cr.  Cas.  (N.  Y.)  223  (1855)  ; 
I'eople  V.  Robinson,  1  I'ark.  Cr.  Cas. 
(N.  Y.)  649  (1854)  ;  Jones  v.  Com- 
monwealth, 75  Pa.  St.  403  (1874)  ; 
s.c.  1  Am.  Cr.  Rep.  262 ;  Law. 
Insan.  638;  Keenan  v.  Commonwealth, 
44  Pa.  St.  55  (1862);  s.c.  84  Am. 
Dec.  414 ;  Law.  Insan.  715 ;  Penn- 
sylvania V.  McFall,  Addis.  (Pa.)  255 
(1794);  Commonwealth  v.  Piatt,  11 
Phila.  (Pa.)  421  (1876)  ;  Pirtle  v. 
State,  9  Humph.  (Tenn.)  663  (1849)  ; 
s.c.  Law.  Insan.  645;  Swan  v.  State, 
4  Humph.  (Tenn.)  136  (1843)  ;  s.c. 
Law.  Insan.  643;  Cartwright  v.  State, 
8  Lea  (Tenn.)  377  (1881)  ;  s.c.  Law. 
Insan.  652 ;  Lancaster  v.  State,  2 
Lea  (Tenn.)  575  (1879)  ;  s.c.  Law. 
Insan.  658;  Cornwell  r.  State,  2 
Mart.  &  Yerg.  (Tenn.)  147  (1827)  ; 
s.c.  Law.  Insan.  583 ;  Bennett  v. 
State,  2  Mart.  &  Yerg.  (Tenn.) 
133  (1827);  s.c.  Law.  Insan.  571; 
Carter  v.  State,  12  Tex.  500  (1854); 
s.c.  62  Am.  Dec.  539 ;  Law.  Insan. 
588;  Rather  v.  State,  25  Tex.  App. 
023  (1888);  s.c.  9  S.  W.  Rep.  70; 
Territory  v.  Connell  (Utah  Ter.)  16 
Pac.  Rep.  209  (1888);  State  v.  Tatro, 
50  Vt.  483  (1878)  ;  s.c.  3  Am.  Cr. 
Rep.  165;  Boswell  v.  Commonwealth, 
20  Gratt.  (Va.)  860  (1871)  ;  s.c.  Law. 
Insan.  592;  Hopt  v.  People,  104  U.  S. 
(14  Otto)  631  (1881)  ;  bk.  26  L.  ed. 
873;  s.c.  Law.  Insan.  664;  United 
States  V.  Drew,  5  Mason  C.  C.  28 
(1828)  ;  s.c.  Law.  Insan.  601 ;  United 


232 


HOMICIDE. 


[chap.  VII. 


such    a    degree    that  the    person    is    insensible    to    liis    sur- 
roundino-s  and   unconscious  of   his  acts,^   because   it   is   tlie 


States  V.  King,  oi  Fed.  Kep.  302 
(1888)  ;  Hex  v.  Tlioiuas,  7  Car.  &  P. 
8.51  (1837);  s.c.  32  Eng.  C.  L.  889; 
Kex  V.  Carroll,  7  Car.  &  P.  145  (1835)  ; 
s.c.  32  Eng.  C.  L.  543. 

1  State  V.  Bullock,  13  Ala.  413 
(1848)  ;  People  v.  Bell,  49  Cal.  485 
(1875);  People  i-.  Lewis,  36  Cal.  531 
(18G9);  People  v.  King,  27  Cal.  507 
(18!55);  State  v.  Johnson,  40  Conn. 
136  (1873)  ;  State  v.  McGonigal,  5 
Harr.  (Del.)  510  (1855);  Estes  v. 
State,  55  Ga.  31  (1875)  ;  Westmore- 
land V.  State,  45  Ga.  225  (1872); 
Wise  V.  State,  31  Ga.  354  (1866); 
Choice  V.  State,  31  Ga.  424  (1860)  ; 
Golden  )).  State,  25  Ga.  527  (1853); 
Jones  V.  State,  29  Ga.  594  (1860)  ;  Mer- 
cer y.  State,  17  Ga.  146  (1855);  Kaf- 
ferty  v.  People,  (iG  III.  118  (1872); 
Mclntyre  c.  People,  38  111.514  (1865); 
Patterson  r.  State,  66  Iiul.  185  (1879); 
Gillooley  r.  State,  58  Ind.  182  (1877); 
Cluck  ('.  State,  40  Ind.  263  (1872); 
Bradley  v.  State,  31  Ind.  492  (1869); 
Bailey  v.  State,  26  Ind.  422  (1866); 
Dawson  v.  State,  16  Ind.  428  (1861)  ; 
O'Herrin  v.  State,  14  Ind.  420  (1860); 
State  V.  Hart,  29  Iowa,  268  (1870); 
Reed  v.  Harper,  25  Iowa,  87  (1808); 
State  V.  White,  14  Kan.  538  (1875); 
Shannahan  v.  Commonwealth,  8  Bush 
(Ky.)  464  (1871);  GoUiher  v.  Com- 
monwealth, 2  Duv.  (Ky.)  163  (1865)  ; 
Smith  r.  Commonwealth,  1  Duv.  (Ky.) 
224  (1864)  ;  Tyra  v.  Commonwealth, 
2  Met.  (Ky.)  1  (1859)  ;  State  v.  Cole- 
man, 27  La.  An.  691  (1875);  State 
V.  Graviotte,  22  La.  An.'  587  (1870)  ; 
State  V.  Mullen,  14  La.  An.  577 
(1859)  ;  Commonwealth  v.  Malone, 
114  Mass.  295  (1873) ;  Commonwealth 
V.  Hawkins,  09  Mass.  (3  Gray)  403 
(1855)  ;  Lawton  v.  Sun  Mut.  Ins.  Co., 
56  Mass.  (2  Cush.)  500  (1848)  ;  Rob- 
erts V.  People,  19  Mich.  401  (1870); 
People  V.  Garhntt,  17  Mich.  9  (1808); 
s.c.  97  Am.  Dec.  162 ;  Law.  Insan. 
463;  State  i-.  Welch,  21  Minn.  22 
(1874);  State  v.  Gut,  13  i\Iinii.  341 
(1868);  Kelly   v.   State,    11    Miss.    (3 


Smed.  &  M.)  518  (1844)  ;  State  v. 
Dearing,  65  Mo.  530  (1877);  State 
V.  Pitts,  58  Mo.  556  (1875)  ;  State  v. 
Huntley,  46  Mo.  414  (1870)  ;  s.c.  Law. 
Insan.  417;  State  v.  Cross,  27  Mo. 
332  (1858) ;  State  i.  Harlow,  21  Mo. 
446  (1855)  ;  Schaller  v.  State,  14 
Mo.  502  (1851);  Whitney  v.  State, 
8  Mo.  165  (1843)  ;  State  v.  Avery,  44 
N.  H.  392  (1862)  ;  State  v.  Thompson, 
12  Nev.  140  (1877);  Real  v.  People, 
42  N.  Y.  279  (1870)  ;  Kenn;i  v.  Peuple, 
31  N.  Y.  330  (1865)  ;  s.c.  Law.  Insan. 
562;  People  v.  Rogers,  18  N.  Y.  9 
(1858)  ;  Cole's  Case,  7  Ahb.  (N.  Y.) 
Pr.  N.  S.  321  (1868);  Lanergan  v. 
People,  50  Barb.  (N.  Y.)  266  (1867); 
Friery  v.  People,  54  Barb.  (N.  Y.) 
319  (1865);  People  v.  Pine,  2  Barb. 
(N.  Y.)  566  (1848)  ;  Willis  v.  People, 
5  Park.  Cr.  Cas.  (N.  Y.)  021  (1864); 
Peo})le  V.  Ilammill,  2  Park.  Cr.  Cas. 
(N.  Y.)  223  (1855) ;  People  v.  Willey, 
2  Park.  Cr.  Cas.  (N.  Y.)  19  (1823)  ; 
People  I'.  Porter,  2  Park.  Cr.  Cas. 
(N.  Y.)  14  (1823)  ;  People  v.  Robin- 
son, 1  Park.  Cr.  Cas.  (N.  Y.)  649 
(1854)  ;  State  r.  John,  8  Ired.  (N.  C) 
L.  330  (1848)  ;  State  v.  Turner, 
Wright  (Ohio)  20  (1831);  Common- 
wealth V.  Hart,  2  Brewst.  (Pa.)  546 
(1868)  ;  State  v.  Stark,  1  Strobli. 
(S.  C.)  L.  479  (1847);  Henslie  v. 
State,  3  Heisk.  (Tenn.)  202  (1871)  ; 
Haile  v.  State,  11  Humph.  (Tenn.) 
154  (1850)  ;  Pirtle  v.  State,  9  Humph. 
(Tenn.)  663  (1849)  ;  Swan  v.  State, 
4  Humph.  (Tenn.)  133  (1843);  Corn- 
well  v.  State,  1  Mart.  &  Y.  (Tenn.)  147 
(1827) ;  Bennett  v.  State,  1  Mart.  &  Y. 
i;53  (1827)  ;  Outlaw  v.  State,  35  Tex. 
481  (1872)  ;  Carter  v.  State,  12  Tex. 
500  (1854)  ;  McCarty  v.  State,  4 
Tex.  App.  461  (1879)  ;  Colbath  v. 
State,  2  Tex.  App.  391  (1878) ;  s.c. 
4  Tex.  App.  76  ;  State  v.  Tatro,  50 
Vt.  483  (1878)  ;  Boswell  v.  Common- 
wealth, 20  Gratt.  (Va.)  860  (1871); 
Schmidt  v.  Pfeil,  24  Wis.  452  (1869)  ; 
Hespublica  v.  Weidle,  2  U.  S.  (2 
Dall.)  88  (1781);  bk.  1  L.  ed.  301; 


SEC.  203.]  DEFENCES   TO   HOMICIDE.  233 

universal  rule  that   the    extent   of   the   intoxication    is    im- 
material.^ 

Sec  203.  Same  —  Irresistible  appetite.  —  Where  the 
intoxication  is  the  result  of  an  irresistible  appetite  for 
liquor,  overcoming  the  will  and  amounting  to  a  disease,  this 
will  not  render  such  intoxication  a  valid  defence.^  Discuss- 
ing this  subject,  the  supreme  court  of  Georgia  say  in  the  case 
of  Choice  v.  State  :^  "  Whether  any  one  is  born  with  an  irre- 
sistible desire  to  drink,  or  whether  such  thirst  may  be  the 
result  of  accidental  injury  done  to  the  brain,  is  a  theory  not 
yet  satisfactorily  established.  For  myself,  I  capitally  doubt 
whether  it  ever  can  be.  And  if  it  were,  how  far  this  crazy 
desire  for  liquor  would  excuse  from  crime,  it  is  not  for  me  to 
say.  That  this  controlling  thirst  for  liquor  may  be  acquired 
by  the  force  of  habit,  until  it  becomes  a  sort  of  a  second 
nature,  in  common  language,  I  entertain  no  doubt.  Whether 
even  a  long  course  of  indulgence  will  produce  a  pathological 
or  organic  change  in  the  brain,  I  venture  no  ppinion.  Upon 
this  proposition,  however,  I  plant  myself  immovably;  and 
from  it  nothing  can  dislodge  me  but  an  act  of  legislature, 
namely :  that  neither  moral  nor  legal  responsibility  can  be 
avoided  in  this  way.  This  is  a  new  principle  sought  to  be 
engrafted  upon  criminal  jurisprudence.  It  is  neither  more 
nor  less  than  this,  that  a  want  of  will  and  conscience  to  do 
right  will  constitute  an  excuse  for  the  commission  of  crime  ; 
and  that  too,  where  this  deficiency  in  will  and  conscience  is 
the  result  of  a  long  and  persevering  course  of  wrong  doing. 
.  .  .  The  fact  is,  responsibility  depends  upon  the  possession 
of  will,  not  the  power  over  it.  Nor  does  the  most  desperate 
drunkard  lose  the  power  to  control  his  will,  but  he  loses  the 

United  States  v.  Forbes,  Crabbe,  U.  S.  row's  Case,  1  Lew.  C.  C.  75   (1823)  ; 

D.    C.  558   (1845)  ;    United  States   v.  Rex  v.  Grindley,  1  Russ.  Cr.  &  M.  8 

Clarke,  2  Crancli  C.   C.  158   (1818) ;  (1819)  ;    1    Bish.    Cr.    L.     (6tli    ed.) 

United  States  v.  McGlue,  1  Curt.  C.  C.  §  400  ;  1   Hale  P.  C.  .32  ;  1  Russ.  Cr. 

1  (1851)  ;   United    States  v.  Cornell,  (9th  ed.)  12. 

2  Mas.  C.  C.  00,  91  (1820);  Rex  i  Lancaster  r.  State,  2  Lea  (Tenn.) 
V.  Thomas,  7  Car.  &  P.  817  (1830)  ;  575  (1879)  ;  s.c.  3  Am.  Cr.  Rep.  100; 
s.c.  32  En.s.  C.  L.  889  ;  Rex  v.  Meakin,  2  Crim.  Def.  058. 

7  Car.  &  P.  297   (1830)  ;  Rex  v.  Car-  -  See  Flanioran  p.  People,  80  N.  Y. 

roll,  7  Car.  &  P.  145  (1835)  ;  s.c.  .32  554  (1881)  ;  s.c.  40- Am.  Rep.  556. 
Eng.   C.  L.    622;    Pearson's    Case.    2  ^  SI   Ga.  424   (1860);  s.c.  2  Crim. 

Lew.    C.    C.     144    (1835)  ;    Rcnnie's  Def.  538. 
Case,  1  Lew.  C.  C.  76  (1825)  ;  Bur- 


234  HOMICIDE.  [chap.  VII. 

desire  to  control  it.  No  matter  how  deep  his  degradation, 
the  drunkard  uses  his  will  when  he  takes  his  cup.  It  is  for 
the  pleasure  or  the  relief  of  the  draught  that  he  takes  it. 
His  intellect,  his  appetite,  and  his  Avill,  all  work  rationally, 
if  not  wisely,  in  his  guilty  indulgence,  and  were  you  to  exon- 
erate the  inebriate  from  the  responsibility,  you  would  do  vio- 
lence both  to  his  consciousness  and  to  his  conscience ;  for  he 
not  only  feels  the  self-prompted  use  of  every  rational  power, 
involved  in  accountability,  but  he  feels  also  precisely  what 
this  new  philosophy  denies,  his  solemn  and  actual  wrong- 
doing, in  the  very  act  of  indulgence.  Converse  seriously 
with  the  greatest  drunkard  this  side  of  actual  insanity,  just 
compose  him  so  as  to  reach  his  clear,  constant  experience, 
and  he  will  confess  that  he  realizes  his  guilt,  and  therefore 
the  responsibility  of  his  conduct.  A  creature  made  resjoon- 
sible  by  God  never  loses  his  responsibility,  save  by  some  sort 
of  insanity.  There  have  always  existed  among  men  a  variety 
of  cases,  wherein  the  will  of  tlie  transgressor  is  universally 
admitted  to  have  little  or  no  power  to  dictate  a  return  to  vir- 
tue. But  mankind  have  never,  in  any  age  of  the  world, 
exonerated  the  party  from  responsibility,  except  when  they 
were  considered  to  have  lost  rectitude  of  intellect  by  direct 
mental  alienation." 

Sec.  204.    Same  —  Producing    temporary    insanity.  —  It 

has  been  said  that  drunkenness  affords  no  excuse  for  crime 
even  in  those  cases  where  it  causes  temporary  insanity,  or 
renders  one  unconscious  of  what  he  is  doing,^  unless  such 
drunkenness  was  occasioned  by  the  fraud,  artifice,  or  contri- 
vance of  another.  Nor  does  it  make  any  difference  that  a 
man,  by  constitutional  infirmity,  or  by  accidental  injury  to 
the  head  or  brain,  is  more  liable  to  be  maddened  by  liquor 
than  another  man.  If  he  has  legal  memory  and  discretion 
when  sober,  and  voluntarily  deprives  himself  of  reason,  he  is 
responsible  for  his  acts  in  that  condition.^  We  have  already 
seen  ^  that  the  New  York  Court  of  Appeals  holds  in  the  case 

1  Upstone  V.  People,  100   111.    1G9     N.  Y.  554  (1881);    s.c.  40  Am.  Rep. 
(1883)  ;  People  v.  Garbutt,  17  Mich.     550. 

9  (1863)  ;  s.c.  97  Am.  Dec.  162  ;   Law.  ^  Choice  v.  State,  31  Ga.  424  (1800); 

Insan.  403.  See  Flanagan  v.  People,  80     s.c.  2  Crim.  Def.  538. 

3  Ante,  §  202. 


SEC.  204.J 


DEFENCES   TO    HOMICIDE. 


235 


of  Flanagan  v.  People,^  that  drunkenness  is  no  excuse  for 
crime,  although  it  be  the  result  of  an  irresistible  •  appetite 
overcoming  the  will  and  amounting  to  a  disease  ;  and  in  the 
case  of  State  v.  Thompson  '^  the  supreme  court  of  Nevada  say 
that  temporary  insanity  produced  b}-  intoxication  does  not 
destroy  responsibility  for  crime,  if  the  accused,  being  sane 
and  responsible,  voluntarily  made  himself  intoxicated.  How- 
ever, in  those  cases  where  the  law  makes  the  condition  of  the 
criniinars  mind  an  essential  element  in  the  crime,  his  intoxi- 
cation may  lie  taken  into  consideration  as  showing  that  no 
crime  was  committed  ;'5  because  the  state  of  mind  produced 
by  such  use  of  intoxicating  liquors  may  be  taken  into  con- 
sideration in  determining  whether  there  was  the  intent  neces- 
sary to  constitute  murder,  and  in  fixing  the  degree,  according 
to  the  presence  or  absence  of  deliberation  and  premeditation,* 


1  86  N.  Y.  554  (1881)  ;  s.c.  40  Am. 
Rep.  550. 

■•2  12  Nev.  140  (1877). 

■*  People  V.  Robinson,  1  Park.  Cr. 
Cas.  (N.  Y.)  649  (1854). 

■*  Williams  v.  State,  81  Ala.  1 
(1886)  ;  s.c.  60  Am.  Kep.  13:1 ;  People 
V.  Williams,  48  Cal.  344   (1872)  ;  s.c. 

I  Gr.  Cr.  Rep.  412;  State  v.  Jnhnson, 
40  Conn.  136  (1873)  ;  s.c.  Law.  Insan. 
603;  2  Gr.  Cr.  Rep.  487;  Jones  v. 
State,  29  Ga.  594  (1860);  s.c.  Law. 
Insan.  612;  ;SV((/e  v.  Moivry,  37  Kan. 
369  (1887);  s.c.  10  Cr.  L.  Mag.  23; 
15  Pae.  Rep.  282  ;  Shannahan  v.  Com- 
monwealth, 8  Busli  (Ivy.)  463  (1871); 
s.c.  8  Am.  Kep.  465 ;  Law.  Insan.  557  ; 
Blimm  v.  Commonwealth,  7  Bush 
(Ky.)  320  (1870)  ;  s.c.  Law.  Insan. 
675;  Kriel  v.  Commonwealth,  5  Rush 
(Ky.)  362  (1869)  ;  Smith  v.  Common- 
wealth, 1  Duv.  (Ky.)  224  (1864)  ;  s.c. 
Law.  Insan.  669;  Roberts  v.  People, 
19  Mich.  401  (1870)  ;  State  v.  Garvey, 

II  Minn.  154  (1866)  ;  Pigman  v.  State, 
14  Ohio,  555  (1846)  ;  s.c.  45  Am.  Dec. 
558  ;  .Tones  v.  Commonwealth,  75  Pa. 
St.  403  (1874)  ;  s.c.  Law.  Insan.  6.38  ; 
1  Am.  Cr.  Rep.  262 ;  Keenan  v.  Com- 
monwealth, 44  Pa.  St.  55  (1862)  ;  s.c. 
84  Am.  Dec.  414;  Law.  Insan.  715; 
Commonwealth    v.   Piatt,    11    Phila. 


(Pa.)  421  (1876).;  Pirtle  v.  Sate,  9 
Humph.  (Tenn.)  663  (1849)  ;  s.c. 
Law.  Insan.  045 ;  Swan  v.  State,  4 
Humph.  (Tenn.)  136  (1843);  s.c. 
Law.  Insan.  643  ;  Cartwright  v.  State, 

8  Lea  (Tenn.)  377  (1881);  s.c.  Law. 
Insan.  652  ;  Lancaster  v.  State,  2  Lea 
(Tenn.)  575  (1879);  s.c.  Law.  Insan. 
658;  3  Am.  Cr.  Rep.  1(!0  ;  Rather  v. 
State,  25  Tex.  App.  623  (1888);  s.c. 

9  S.  W.  Rep.  70;  Territory  v.  Cot- 
ton (Utah  Ter.)  ;  16  Pac.  Rep.  902 
(1888)  ;  Hopt  v.  People,  104  U.  S.  (14 
Otto)  631  (1881)  ;  bk.  26  L.  ed.  873  ; 
s.c.  Law.  Insan.  664  ;  L'nited  States 
V.  King,  34  Fed.  Kep.  302  (1888)  ; 
Re.\  V.  Thomas,  7  Car.  &  P.  851  (1837); 
s.c.  32  Eng.  C.  L.  889.  See  Tidwell 
r.  State,  70  Ala.  3S  (]881)  ;  People  v. 
Langton,  67  Cal.  427  (1885).  Com- 
pare Morrison  v.  State,  84  Ala.  405 
(1887);  s.c.  4  So.  Rep.  402;  Estes 
r.  State,  55  Ga.  31  (1875)  ;  State  v. 
Edwards,  71  Mo.  312  (1879);  State 
V.  Cross,  27  Mo.  332  (1858)  ;  s.c.  Law. 
Insan.  619  ;  People  r.  Rogers,  18  N.  Y. 
9  (1858);  s.c.  72  Am.  Dec.  484  ;  Law. 
Insan.  024  ;  Friery  v.  People,  54  Barb. 
(N.  Y.)  319  (1865);  affirmed  in  2 
Keyes  (X.  Y.)  424  ;  Nichols  v.  State, 
8  Ohio  St.  435  (1858)  ;  s.c.  Law. 
Insan.  667  ;  Pennsylvania  v.  McFall, 


236  HOMICIDE.  [chap.  VII. 

unless  the  homicide  was  designed  before  intoxication.^  Bnt 
mania  a  potu^  or  insanity  occasioned  by  the  use  of  intoxicat- 
ing liquors,  will,  like  other  forms  of  the  malady,  exempt  the 
slayer  from  punishment.^ 

There  are  cases,  however,  which  hold  that  inasmuch  as 
voluntary  intoxication  neither  excuses  nor  justifies  crime,'^ 
that  therefore  intoxication  at  the  time  of  committing  an 
offence  cannot  be  set  up  as  a  defence  to  an  indictment 
therefor.* 

Sec.  205.    Same  —  Shown  as  affecting- physical  capahil- 

ity.  —  The  defendant  may  show  that  about  the  time  the 
crime  was  committed  he  was  in  such  a  physical  condition  as 
to  render  it  improbable  that  he  committed  the  same  ;  and  the 
fact  that  such  condition  was  caused  by  intoxication  makes  no 
difference  in  the  rule,  the  intoxication  not  being  set  up  as  a 
defence ;  ^  but  to  be  too  drunk  to  form  an  intention  to  kill 
one  m"st  be  too.drunk  to  form  an  intent  to  shoot  the  victim.^ 
Thus  it  is  said  in  People  v.  Robinson ''  that  where  a  drunken 
man  retains  mind  enougli  to  plan  and  execute  a  crime,  it  is 
enough  to  subject  him  to  legal  responsibility  ;  and  in  the  case 
of  Territory  v.  Franklin^  that  if  the  defendant,  who  was 
drunk  at  the  time  of  the  act,  was  conscious,  and  understood 


Addis.    (Pa.)    255    (1794)  ;    Haile   i-.  (Del.)    28  (1858)  ;   Hanvey  v.  State, 

State,  11  Humph.  (Teiin.)  154  (1850);  OS  Ga.  012  (1882)  ;  Estes  v.  State,  55 

s.c.  Law.  Insan.  573;  State  v.  Tatro,  Ga.  31  (1875)  ;  Scott  c.  State,  12  Tex. 

60  Vt.  483  (1878)  ;  s.c.  18  Am.  L.Reg.  App.  31   (188.3);  Hex    v.    Thomas,    7 

153;  Rex  v.  Carroll,  7  Car.  &  P.  145  Car.  &  P.  817  (18.36)  ;  s.c.  32  Eng.  C. 

(1835)  ;  s.c.  32  Eng.  C.  L.  542.  L.  889 ;  Reg.  v.  Gamlen,  1  Post.  &  P. 

1  Smith  V.  Commonwealth,  1  Duv.  90    (1858)  ;    Pearson's    Case,   2   Lew. 
(Ky.)   224    (1864)  ;    s.c.  Law.   Insan.  C.  C.  144  (1835). 

669.                             ■  4  United    States     v.    Roudenbush, 

2  State  V.  Hurley,  1  Houst.  Cr.  Cas.  Baldw.  C.  C.  514  (1832)  ;  United 
(Del.)  28  (18.58)  ;  Bradley  v.  State,  States  v.  Forbes,  Crabbe,  U.  S.  D.  C. 
31  Ind.  492  (1869);  s.c.  Law.  Insan.  558(1845);  United  Stated  u.  McGlue, 
114;  People  v.  Rogers,  18  N.  Y.  9  1  Curt.  C.  C.  1  (1851);  United  States 
(1858)  ;  s.c.  72  Am.  Dec.  484;  Law.  v.  Drew,  5  Mas.  C.  C.  28  (1828). 
Insan.  624  ;  Cornwell  r.  State,  2  Mart.  ^  ingalls  v.  State,  48  Wis.  647 
&  Yerg.  (Tenn.)  147  (1827)  ;  .s.c.  Law.  (1879). 

Insan.  583;   Carter  v.  State,  12  Tex.  c  Marshall    v.   State,    59    Ga.    154 

500    (1854);   s.c.   62  Am.  Dec.  539;  (1877). 

Law.  Insan.  588 ;  Boswell  v.  Common-  "  1    Park.    Cr.    Cas.    (N.    Y.)    649 

wealth,   20  Gratt.  (Va.)    860  (1871);  (1854). 

s.c.  Law.  Insan.  592.  f'  2  New  Mex.  307  (1882). 
2  State  V.  Hurley,  Houst.  Cr.  Cas. 


SEC.  207.]  DEFENCES    TO   HOMICIDE.  237 

what  was  done  and  said,  so  as  to  give  an  intelligent  and  true 
account  of  it  at  the  trial,  that  he  is  responsible. 

Sec.  206.    Same  —  Mental  affection  must  be  permanent. 

—  Intoxication  being  no  excuse  for  crime,  it  follows  as  a 
natural  consequence  that  no  state  of  mind  resulting  from 
drunkenness  is  a  defence  unless  it  be  a  permanent  and  contin- 
uous result  therefrom.^  Yet  while  drunkenness  is  no  excuse 
for  crime,  it  cannot  be  held  to  aggravate  the  homicide.^  In 
early  cases,  however,  it  is  said  that  drunkenness  "  only  aggra- 
vates the  offence."  ^  Thus  it  has  l)een  held  in  Pennsylvania 
that  intoxication  is  an  aCToravation  of  rather  than  an  excuse 
for  crime ;  that  short  of  destruction  of  reason  is  in  no  case 
a  full  defence ;  but  that  Avdiere  it  is  so  great  as  to  render  it 
impossible  for  a  man  to  form  any  complete  design,  the  law 
allows  it  to  reduce  the  grade  of  homicide  from  murder  in  the 
first  to  murder  in  the  second  degree  ;  but  in  all  such  cases 
the  burden  of  proof  is  on  the  defendant.* 

In  those  cases  where  intoxication  is  resorted  to  for  the  pur- 
pose of  blunting  their  moral  responsibility  the  intoxication 
heightens  the  culpability  of  the  defendant ;  ^  and  where  the 
act  is  done  wilfully,  the  intoxication  can  furnish  no  extenua- 
tion for  the  offence.*' 

Sec.  207.  Same  —  As  an  agg^ravatiou  of  offence — Illi- 
nois doctrine.  —  In  the  case  of  Mclntyre  v.  People,"  the 
Illinois  supreme  court  say :  "  We  are  aware  that  text-writers 
frequentl}^  say  that  drunkenness  is  no  excuse  for  crime,  but 
rather  an  aggravation  of  the  offence.  That  it  is  no  excuse, 
is  certainly  true  ;  but  that  it  should  be  held  in  laAV  to  aggra- 
vate crime,  is  not,  we  conceive,  a  correct  proposition.  In 
ethics,  it  is  no  doubt  true  ;  but  how  can  it  aggravate  a  wil- 
ful deliberate  murder,  planned  with  malice  preconceived  and 
deliberately  perpetrated,  we  are  unable  to  comprehend.  Or 
that  it  will  aggravate  what  in  law  is  only  manslaughter,  if 

1  State  V.  Coleman,  27  La.  An.  691  *  Commonwealth  v.  Hart,  2  Brewst. 
(1875).  (Pa.)  546  (1868). 

2  See  Mclntyre  v.  People,  38  111.  ^  United  States  v.  Claypool,  14 
514  (1865)  ;  Haile  i-.  State,  11  Hump.  Fed.  Rep.  127  (1882). 

(Tenn.)   154  (1850)  ;  s.c.  2   Or.  Def.  ^  People    v.   Jones,    2    Edm.    Sel. 

573.  Cas.  (N.  Y.)  86  (1849)  ;  Pugh  v.  State, 

3  People  V.  forter,  2  Park.  Cr.  Cas.  2  Te.x.  App.  539  (1878). 
(X.  Y.)  14  (1823).  '  38  111.  515  (1865). 


238  HOMICIDE.  [chap.  VII. 

perpetrated  by  a  sober  man,  into  murder  if  committed  by  a 
drunken  man,  is  not,  we  conceive,  true.  Or  that  it  increases 
a  minor  oftence  to  one  of  the  higher  grade,  is  not  true. 
Whilst  it  is  no  ground  for  reversing  a  judgment,  it  is,  per- 
haps, calcuhited  to  prejudice  the  defendant's  case ;  and  a 
court  miglit  well  omit  to  give  it,  or  at  least  to  modify  it 
before  it  should  be  given." 

Sec.  208.  Same  —  Texas  doctrine.  —  In  the  case  of  Farrell 
V.  State  1  the  trial  court  told  the  jury  that  the  condition  of 
the  defendant,  at  the  time  of  the  homicide,  the  result  of 
intoxication,  was  an  aggravation  of  the  offence,  and  should 
be  so  regarded  by  the  jury,  thus,  in  effect,  telling  them  if  the 
defendant  was  intoxicated  he  might  be  properly  convicted  of 
a  higher  grade  of  offence  than  the  facts  otherwise  required ; 
for,  it  will  be  observed,  it  is  the  offence,  and  not  its  penalty, 
which  the  court  tells  the  jury  is  aggravated  by  appellant's 
intoxication.  On  appeal  the  supreme  court  said :  "  It  is 
needless  for  us  to  say  that  the  law  of  this  state  gives  no 
warrant  for  such  doctrine.  While  intoxication  is  no  excuse, 
much  less  justification,  for  crime,  it  is  certainly  a  startling 
idea  that  the  bare  fact  of  one  being  in  this  condition  when 
the  homicide  is  committed  converts  murder  in  the  second 
into  murder  in  the  first  degree,  or  will  authorize,  if  not 
require,  the  jury  to  impose  the  penalty  of  death  or  confine- 
•  ment  for  life  instead  of  a  term  of  years.  This  would  be 
directly  the  reverse  of  the  rule  laid  down  by  the  code,  and 
would  make  that  the  homicide  was  committed  when  the  per- 
petrator was  incapable  of  a  deliberate  intention  and  formed 
design  to  take  life  or  do  other  serious  bodily  injury  for  want 
of  a  sedate  mind,  an  aggravation  instead  of  a  mitigation  of 
the  heinousness  of  the  murder.^ 

Spx.  209.  Same  —  When  considered.  —  Intoxication  being 
an  aggravation  of,  rather  than  an  excuse  for,  a  crime,  it  can 
only  be  considered  in  those  ci'ses  involving  the  condition  of 
the  defendant's  mind  when  the  act  was  committed ;  ^  and  this 

1  43  Tex.  503  (1875).  (1845);   United    States   v.   Claypool, 

2  See  State  v.  Donovan,  61   Iowa,     14  Fed.  Rep.  127  (1882). 

309  (1883);  Commonwealth  r.   Hart,  ■^  State    r.    Mowry,    37    Kan.    300 

2  Brewst.  (Pa.)  540  (1868);  Ignited  (1887);  s.c.  10  Cr.  L.  Mag.  23;  15 
States  V.  Forbes,  Crabbe  U.  S.  I).  C.  559     Pac.  Rep.  282. 


SEC.  209.] 


DEFENCES   TO    HOMICIDE. 


239 


is  true,  although  the  iutcxication  amounts  to  a  frenzy.^  It 
would  be  incorrect,  however,  to  sa}'  that  the  considenUion  of 
drunkenness  is  never  entertained  in  the  criminal  law.  Thoufjli 
it  is  no  -excuse  for  crime,  yet  it  is  sometimes  an  index  of  the 
quality  of  an  act.  Thus  it  may  be  taken  into  account  by 
the  jury  when  considering  the  motive  or  intent  of  a  person 


1  Ford  V.  State,  71  Ala.  385  (1882); 
s.c.  5  Cr.  L.  Maji.  32  ;  Tidwell  i:  State, 
70  Ala.  33  (1881)  ;  Ross  v.  State,  G2 
Ala.  225  (1878)  ;  Beasleij  v.  State,  50 
Ala.  149  (187-1) ;  s.c.  20  Am.  Rep. 
292;  Mooney  c.  State,  33  Ala.  419 
(1859)  ;  State  v.  Bullock,  13  Ala.  413 
(1848);  McKenzie  v.  State,  20  Ark. 
335  (1870);  s.c.  Law.  Insan.  533; 
People  V.  Ferris,  55  Cal.  588  (1880)  ; 
s.c.  2  Cr.  L.  Mag.  18;  2  Ky.  L.  Rep. 
190  ;  10  Rep.  588  ;  People  v.  Williams, 
43  Cal.  344  (1872) ;  s.c.  1  Gr.  Cr. 
Rep.  412;  People  v.  Belencia,  21  Cal. 
544  (1863)  ;  State  v.  Smith,  49  Conn. 
376  (1881);  State  v.  Johnson,  41 
Conn.  584  (1874)  ;  People  v.  Odell, 
1  Dak.  Ter.  197  (1875)  ;  State  v. 
McGonigal,5  Harr.  (Del.)  510  (1855); 
State  V.  Thomas,  1  Houst.  Cr.  Cas. 
(Del.)  511  (1878)  ;  State  v.  Till,  1 
Houst.  Cr.  Cas.  (Del.)  233  (1867); 
State  V.  Hurley,  1  Houst.  Cr.  Cas. 
(Del.)  28  (1858) ;  Moon  r.  State,  68 
Ga.  687  (1882)  ;  Hanvey  v.  State, 
68  Ga.  612  (1882)  ;  Marshall  r.  State, 
59  Ga.  154  (1877)  ;  Estes  v.  State,  55 
Ga.  31  (1875)  ;  Pierce  v.  State,  53  Ga. 
365  (1874) ;  Choice  v.  State,  31  Ga. 
424  (1860)  ;  Golden  v.  State,'  25  Ga. 
527  (1853)  ;  Mercer  v.  State,  17  Ga. 
146  (1855)  ;  Upstone  v.  I'eople,  109 
111.  169  (1883)  ;  RafTerty  v.  People, 
66  111.  118  (1872);  Surber  r.  State, 
99  Ind.  71  (1884)  ;  Goodwin  v.  State, 
96  Ind.  550  (1884)  ;  Sanders  v.  State, 
94  Ind.  147  (1883)  ;  Smurr  v.  State, 
88  Ind.  504  (1883)  ;  Gillooley  v. 
State,  58  Ind.  182  (1877);  Cluck  v. 
State,  40  Ind.  263  (1872)  ;  Bradley 
t'.  State,  31  Ind.  492  (1869)  ;  State  v. 
Ma.\well,  42  Iowa,  208  (1875);  State 
r.  Moivri/,  37  Kan.  369  (1887);  s.c. 
10  Cr.  L.  Mag.  23  ;  15  Pac.  Rep.  282  ; 
State  V.  White,  14  Kan.  538  (1875)  ; 


Nichols  V.  Commonwealth,  11  Bush 
(Ky.)  576  (1875)  ;  Shannahan  v. 
Commonwealth,  8  Bush  (Ky.)  463 
(1871)  ;  s.c.  8  Am.  Rep.  465;"  Blimm 
r.  Commonwealti),  7  Busli  (Ky.)  320 
(1870)  ;  s.c.  10  Am.  L.  Reg.  '(N.  S.) 
677;  Smith  r.  Commonwealth,  1  Duv. 
(Ky.)  227  (1864)  ;  State  v.  Mullen, 
14  La.  An.  577  (1859)  ;  State  r.  Ver- 
rill,  54  Me.  408  (1867)  ;  Common- 
wealth i".  Malone,  114  Mass.  295 
(1873) ;  Commonweayii  r.  Dorsey, 
103  Mass.  412  (1869)  ;  Conimonwealtli 
r.  Hawkins,  69  Mass.  (3  Gray)  463 
(1855)  ;  People  v.  Cummins,  47  Mich. 
3.34  (1882)  ;  People  v.  Finley,  38 
Mich.  482  (1878)  ;  People  v.  Garbutt, 
17  Mich.  9  (1868);  s.c.  97  Am.  Dec. 
162  ;  Law.  Insan.  403  ;  7  Am.  L.  Reg. 
(N.  S.)  554  ;  State  v.  Grear,  28  Minn. 
426  (1881);  s.c.  10  N.  W.  Rep.  472; 
State  V.  Herdina,25  Minn.  161  (1878); 
State  V.  Welch,  21  Minn.  22  (1874)  ; 
Kelly  V.  State,  11  Miss.  (3  Smed.  & 
M.)  518  (1844)  ;  State  v.  Edwards, 
71  Mo.  312  (1879)  ;  State  v.  Pitts, 
.58  Mo.  556  (1875)  ;  State  v.  Hundley, 
46  Mo.  414  (1870)  ;  s.c.  Law.  Insan. 
417  ;  State  v.  Harlow,  21  Mo.  446 
(1855);  Schaller  v.  State,  14  Mo.  502 
(1851)  ;  Schleneker  ;;.  State,  9  Neb. 
242  (1879)  ;  s.c.  1  N.  W.  Rep.  241 ; 
State  r.  Thompson,  12  Nev.  140  (1877); 
State  V.  Pike,  49  N.  H.  .399  (1870) ; 
State  V.  Avery,  44  N.  H.  392  (1862)  ; 
People  V.  Rogers,  18  N.  Y.  9  (1858)  ; 
People  V.  Jones,  2  Edm.  Sel.  Cas. 
(N.  Y.)  86  (1849)  ;  People  v.  O'Connell, 
62  How.  (N.  Y.)  Pr.  4.36  (1881)  ; 
People  V.  Cavanagh,  62  How.  (N.  Y.) 
Pr.  187  (1881);  State  v.  Keath,  83 
N.  C.  626  (1881)  ;  Davis  v.  State, 
25  Ohio  St.  369  (1874)  ;  Nichols  v. 
State,  8  Ohio  St.  439  (1858)  ;  Jones 
V.    Commonwealth,   75    Pa.   St.    403 


240 


HOMICIDE. 


[chap.  VII. 


acting  under  its  influence ;  for  example,  on  the  question 
whether  a  person  who  struck  a  blow  was  excited  by  passion, 
or  acted  from  ill-will;  whether  expressions  used  by  the 
prisoner  were  uttered  with  a  deliberate  purpose,  or  were 
merely  the  idle  expressions  of  a  drunken  man.i  Where  the 
offence  charged  embraces  deliberation,  premeditation,  some 
specific  intent,  or  the  like,  evidence  of  intoxication  may  be 
important;  2  and  evidence  that  the  accused  was  intoxicated 
at  the  time  of  the  killing  is  admissible  to  show  whether  he 
was  in  such  a  state  of  mind  as  to  be  capable  of  premedita- 
tion ;  3  because  every  person  accused  of  crime  has  a  right  to 
show  that  at  the  time  of  its  commission,  he  was  physically 
incapable  of  committing  it  by  reason  of  his  intoxication. 
Thus  if  a  man,  by  voluntary  drunkenness,  render  himself 
incapable  of  walking  for  a  limited  time,  it  is  just  as  compe- 
tent evidence  tending  to  show  that  he  did  not  walk  during 
the  time  he  was  so  incapable,  as  though  he  had  been  so  ren- 


(1874)  ;  Commonwealth  v.  Hart,  2 
Brewst.  (Pa.)  546  (1868)  ;  Common- 
wealth V.  Crozier,  1  Brewst.  (Pa.) 
349  (1867)  ;  Commonwealtli  v.  Dough- 
erty, 1  Browne  App.  (Pa.)  20  (1807) ; 
Commonwealth  v.  Fletcher,  83  Leg. 
Int.  (Pa.)  13  (1876)  ;  Commonwealth 
V.  Piatt,  11  Piiil.  (Pa.)  421  (1876); 
State  V.  Paulk,  18  S.  C.  514  (1882)  ; 
State  V.  McCants,  1  Speer  (S.  C.) 
393  (1843);  Stuart  v.  State,  1  Baxt. 
(Tenn.)  178  (1873)  ;  Pirtle  r.  State, 
9  Humph.  (Tenn.)  663  (1849);  Cart- 
wright  V.  State,  8  Lea  (Tenn.)  376 
(1881)  ;  Lancaster  v.  State,  2  Lea 
(Tenn.)  575  (1879)  ;  Ferrell  v.  State, 
43  Tex.  503  (1875)  ;  Carter  i-.  State, 
12  Tex.  500  (1854)  ;  Gaitan  v.  State, 
11  Tex.  App.  544  (1882)  ;  Jeffries 
V.  State,  9  Tex.  App.  598  (1881); 
Payne  v.  State,  5  Tex.  App.  35  (1879); 
Brown  v.  State,  4  Tex.  App.  275  (1879); 
Colbath  V.  State,  2  Tex.  App.  391 
(1878)  ;  State  v.  Tatro,  50  Vt.  483 
(1878);  s.c.  18  Am.  L.  Reg.  153; 
Willis  r.  Commonwealth,  32  Gratt. 
(Va.)  929  (1879);  s.c.  3  Va.  L.  J. 
741  ;  Boswell  v.  Commonwealth,  20 
Gratt.  (Va.)  860  (1871)  ;  State  v. 
Robinson,  20  W.  Va.  713  (1882)  ;  s.c. 


43  Am.  Rep.  799;  Cross  v.  State,  55 
Wis.  201  (1882) ;  Hopt  v.  People,  104 
U.  S.  (14  Otto)  631  (1881)  ;  bk.  26 
L.  ed.  873;  United  States  v.  Clarke,  2 
Cr.  C.  C.  158  (1818)  ;  United  States  v. 
Forbes,  Crabbe  U.  S.  D.  C.  558  (1845); 
United  States  r.  McGlue,  1  Curt.  C.  C. 

1  (1851);  United  States  v.  Drew,  5 
Mas.  C.  C.  28  (1828)  ;  United  States 
V.  Cornell,  2  Mas.  C.  C.  60,  91  (1820); 
United  States  v.  Claypool,  14  Fed. 
Rep.  127  (1882). 

1  Rex  V.  Thomas,  7  Car.  &  P.  817 
(1836)  ;  s.c.  32  Eng.  C.  L.  889;  Har- 
ris' Cr.  L.  25. 

2  People  V.  Harris,  29  Cal.  678 
(1866);  State  v.  Johnson,  40  Conn. 
136  (1873)  ;  Roberts  v.  People,  19 
Mich.  401  (1870)  ;  State  v.  Welch,  21 
Minn.  22  (1874)  ;  People  v.  Robinson, 

2  Park.  Cr.  Cas.  (N.  Y.)  235  (1855)  ; 
Pigman  v.  State,  14  Ohio  555  (1846)  ; 
Lytle  V.  State,  31  Ohio  St.  196  (1877) ; 
Davis  V.  State,  25  Ohio  St.  369 
(1874)  ;  Nichols  v.  State,  8  Ohio  St. 
435  (1858)  ;  Hopt  v.  People,  104  U.  S. 
(14  Otto)  631  (1881);  bk.  26  L.  ed. 
873. 

3  Hopt  V.  People,  104  U.  S.  (14 
Otto)  631  (1881)  ;  bk.  26  L.  ed.  873. 


SEC.  209.]  DEFENXES    TO    HOMICIDE.  241 

dered  incapable  by  paralysis  of  his  limbs  from  some  cause 
over  which  he  had  no  control.  The  cause  of  the  incapacity, 
in  such  case,  is  immaterial ;  the  material  question  is.  Was  he, 
in  fact,  incapa])le  of  doing  the  acts  charged  ?  ^  In  the  case 
of  Cline  v.  Slate,^  in  a  prosecution  for  maliciously  shooting 
with  intent  to  v.'ound,  evidence  that  the  defendant  was  so 
much  intoxicated  that  he  could  not  form  any  such  intent, 
Avas  held  admissible. 

It  is  Avell  settled  that  drunkenness  may  be  considered  by 
the  jury  like  anj^  other  fact  when  considering  the  motive  or 
intent  of  the  one  acting  under  its  influence,'^  to  shed  light  on 
the  transaction.'*  Thus  if  drunkenness  exists  to  such  a  degree 
as  to  render  one  incapable  of  forming  a  premeditated  design 
to  kill,  it  cannot  be  murder  in  the  first  degree.^  And  it  is 
said  in  Ingalls  v.  State  ^  that  the  accused  may  alwa3^s  show 
that,  about  the  time  the  crime  was  committed,  he  Avas  in  such 
a  physical  condition  as  to  render  it  improbable  that  he  com- 
mitted the  deed  ;  and  the  fact  that  such  condition  was  caused 
b}'  intoxication  makes  no  difference  in  the  rule,  the  intoxica- 
tion not  being  set  up  as  a  defence. 

Whether  the  defendant  was  so  intoxicated  as  to  be  unable 
to  form  an  intent  to  commit  assault,  is  a  question  for  jury." 
Where  the  prisoner,  at  the  time  of  the  act,  was  so  drunk  that 
he  did  not  know  what  he  did,  that  fact  negatived  the  attempt 
to  commit  suicide.^  But  in  such  a  case  it  is  also  held  that 
the  mere  fact  of  drunkenness  is  no  excuse  ;  yet  it  is  a  mate- 
rial fact  for  the  jury  to  consider,  before  coming  to  the  con- 
clusion that  the  prisoner  really  intended  to  destroy  his  life.^ 
Thus  where  provocation  by  a  blow  has  been  given  to  one  who 
kills  another  Avith  a  Aveapon  Avhich  he  happens  to  haA^e  in  his 
hands,  his  drunkenness  may  be  considered  on  the  question  of 

1  State  V.  Home,  0  Kan.  119  (1872)  ;  s  Cartwright  r.  State,  8  Lea  (Tenn.) 

Ingalls  V.  State,  48  AVis.  647   (1879)  ;  376  (1881). 

s.c.  1  Cr.  L.  Mag.  476;  4  N.  W.  Hep.  o  43  wis.  647  (1879)  ;  s.c.  4  N.  ^Y. 

785;  2  AVis.  L.  N.  208.  Rep.  78o. 

-  43    Ohio    St.  332    (1885)  ;    .s.c.  1  '  Commonwealth  v.  Ilagenlock,  140 

N.  E.  Rep.  22.  Mass.  125  (1885) ;  s.c.  3  N.  E.  Rep.  36. 

3  Reg.  V.  Gamlen,  1  Post.  &  F.  90  «  Reg.  v.  Moore,  3  Car.  &  K.  319 

(1858).  (1852);  s.c.  16  Jur.  750  ;    1    Am.  L. 

*  Hanvey    r.    State,    68    Ga.    612  Reg.  O.  S.  37. 

(1882).  9  Reg.  V.  Doody,  6   Cox   C.  C.  463 


(1854). 


16 


242  HOMICIDE.  [chap.  vir. 

malice,  and  wlietlier  his  expressions  manifested  a  deliberate 
purpose,  or  were  merely  idle  expressions  of  a  drunken  man.^ 
The  court  say :  "  Drunkenness  may  be  taken  into  considera- 
tion in  cases  where  what  the  law  deems  sufficient  provocation 
has  been  given,  because  the  qu.estion  is,  in  such  cases,  whether 
the  fatal  act  is  to  be  attributed  to  the  passion  of  anger  ex- 
cited by  the  previous  provocation,  and  that  passion  is  more 
easily  excited  in  a  person  when  in  a  state  of  intoxication  than 
when  sober." 

Sec.  210.  Same  —  Affecting-  intent  and  degrees  of  of- 
fence. —  In  all  those  cases  where  the  actual  existence  of  any 
particular  purpose,  motive,  or  intent  is  a  necessary  element 
to  constitute  any  particular  species  or  degree  of  crime,  the 
jury  may  take  into  consideration  the  fact  that  the  accused 
was  intoxicated  at  the  time  of  committing  the  act,  in  deter- 
mining the  purpose,  motive,  or  intent  with  which  the  offence 
was  committed.^  Therefore  the  fact  of  intoxication  may  be 
admitted  in  evidence  as  to  the  degree  of  the  crime,  and  in 
mitigation  of  the  offence.  When  the  degree  of  guilt  depends 
on  premeditation,  the  intoxication  of  the  accused  may  be 
taken  into  consideration  in  determining  what  specific  offence 
has  been  committed,  or  the  grade  of  the  offence,  or  to  test 
the  capacity  of  the  accused  to  form  a  purpose,  or  to  decide 
between  right  and  wrong,  as  tending  to  show  that  the  accused 
was  not  capable  of  deliberation,  or  incapable  of  attack  or 
defence,  or  unable  to  form  a  wilful,  deliberate,  and  premedi- 
tated design,'  or  incapable  of  judging  of  his  acts  or  their 
legitimate  consequences.^ 

1  Rex  V.  Thomas,  7  Car.  &  P.  817  (1859)  ;  State  v.  Bullock,  1?,  Ala.  418 
(1836)  ;  s.c.  32  Eng.  C.  L.  889.  (1848) ;    People  v.  Williams,  43  Cal. 

2  People  V.  Harris,  29  Cal.  678  344  (1872);  s.c.  1  Or.  Cr.  Kep.  412  ; 
(1866)  ;  State  v.  Johnson,  40  Conn.  People  r.  Lewis,  36  Cal.  531  (1869)  ; 
136  (1873)  ;  Roberts  v.  People,  19  Peoi)!e  r.  King,  27  Cal.  507  (1865)  ; 
Mich.  401  (1870);  State  V.  Welch,  21  People  v.  Belenoia,  21  Cal.  544 
Minn.  22  (1874);  People  r.  Robinson,  (18(i3)  ;  State  v.  Johnson,  41  Conn. 
2  Park.  Cr.  Cas.  (N.  Y.)  235  (1855)  ;  584  (1874)  ;  s.c.  40  Conn.  136;  Peo- 
Pigman  v.  State,  14  Ohio,  555  (1846)  ;  pie  v.  Odell,  1  Dak.  Tr.  197,  203 
Lytle  V.  State,  31  Ohio  St.  196  (1877)  ;  (1875) ;  Henry  v.  State,  33  Ga.  441 
Davis  V.  State,  25  Ohio  St.  369  (1863);  .Tones  v.  State,  29  Ga.  594 
(1874)  ;  Nichols  v.  State,  8  Ohio  St.  (I860)  ;  Golden  v.  State,  25  Ga.  527 
435(1858);  Hopt  u.  People,  104  U.  S.  (1853);  IJafferty  v.  I'eopie,  66  III 
(14  Otto)  631  (1881);  bk.  26  L.ed.  873.  118  ri872)  ;  Dawson  c.  State,  16  Ind. 

3  Mooney    v.    State,    33    Ala.    419  428(1801);    State   v.  Home,  9   Kan. 


SEC.  210.] 


DEFENCES    TO    HOMICIDE. 


243 


While  it  is  true  that  drunkenness  of  itself  constitutes  no 
excuse  for  crime,  yet,  in  cases  which  involve  intention  as  well 
as  acts,  it  may  be  proper  to  hear  proof  of  the  condition  of  the 
accused  as  to  sobriety  at  the  time  of  the  offence  in  order  to 
test  his  capacity  to  decide  between  right  and  wrong ;  ^  and 
while  drunkenness  neither  aggravates  nor  excuses  an  act  done 
V)y  a  party  while  under  the  influence  of  liquor,  yet  such  con- 
dition is  a  fact  which  may  affect  phj'sical  ability  and  mental 
condition,  and  may  for  that  reason  be  essential  in  determining 
the  nature  and  the  character  of  the  acts  of  the  accused,  as 
well  as  the  purpose  and  intent  with  which  they  were  done.^ 
Thus  on  a  charge  of  murder  the  drunkenness  of  the  defend- 
ant may  be  considered  with  a  view  of  determining  whether 
there  was  that  deliberation,  premeditation,  and  intent  to  kill, 
necessary  to  constitute  the  offence,^  because  evidence  of  in- 
toxication is  admissible  to  prove  the  mental  status  of  the 
accused,  and  thereby  determine  the  degree  of  the  crime.*    In 


119  (1872)  ;  Sliannahan  v.  Common- 
wealth, 8  Bush  (Ky.)  463  (1871); 
Bliinm  v.  Commonwealth,  7  Bush 
(Ky.)  .320  (1870)  ;  Kriel  r.  Common- 
wealth, 5  Bush  (Ky.)  302  (1869)  ; 
Curry  c.  Commonwealth,  2  Bush  (Ky.) 
67  (1867)  ;  GoUiher  v.  Commonwealth, 
2  Duv.  (Ky.)  163  (1865)  ;  Smith  v. 
Commonwealtli,  1  Duv.  (Ky.)  224 
(1864)  ;  Roberts  v.  People,  19  Mich. 
401  (1870)  ;  Kelly  r.  State,  11  Miss. 
(3  Smed.  &  M.)  518  (1844)  ;  Smith  v. 
State,  4  Neb.  277  (1876) ;  Kenny  v. 
People,  31  N.  Y.  .330  (1865)  ;  s.c.  Law. 
Insan.  562  ;  People  v.  Rogers,  18  N.  Y. 
9  (1858) ;  Jones  v.  Commonwealth, 
75  Pa.  St.  403  (1874)  ;  Keenan  v. 
Commonwealth,  44  Pa.  St.  55  (1862)  ; 
Rogers  r.  People,  3  Park.  Cr.  Cas. 
(N.  Y.)  6.32  (1858)  ;  Pennsylvania  v. 
McFall,  Addis.  (Pa.)  255  (1794)  ; 
Commonwealth  r.  Hart,  2  Brewst. 
(Pa.)  .546  (1868)  ;  Kelly  v.  Common- 
wealth, 1  Grant  Cas.  (Pa")  484  (1858)  ; 
State  V.  McCants,  1  Speer  (S.  C.)  384 
(1843);  Pirtle  f.  State,  9  Humph. 
(Tenn.)  663  (1849)  ;  Clark  v.  State, 
8  Humph.  (Tenn.)  671  (1848);  Swan 
c.  State,  4  Humph.  (Tenn.)  136 
(1843);    Lancaster   v.    State,   2    Lea 


(Tenn.)  575  (1879)  ;  Cornwell  v. 
State,  Mart.  &  Y.  (Tenn.)  147  (1827)  ; 
Ferrell  r.  State,  43  Tex.  503  (1875)  ; 
McCarty  v.  State,  4  Tex.  App.  461 
(1879)  ;  Brown  r.  State,  4  Tex.  App. 
275  (1879);  Wenz  v.  State,  1  Tex. 
App.  36  (1877);  Boswell  r.  Common' 
wealth,  20  Gratt.  (Va.)  860  (1871)  ; 
Commonwealth  t-.  Jones,  1  Leigh  (Va.) 
598  (1829)  ;  Rex  i-.  Meakin,  7  Car.  & 
P.  297  (1836)  ;  s.c.  .32  Eng.  C.  L.  622; 
Rex  V.  Thomas,  7  Car.  &  P.  817  (1836)  ; 
s.c.  .32  Eng.  C.  L.  889 ;  Reg.  v.  Moore, 
3  Car.  &  K.  319  (1852)  ;  Reg.  v. 
Doody,  6  Cox  C.  C.  463  (1854)  ;  Reg. 
V.  Mmikhouse,  4  Cox  C.  C.  55  (1849)  ; 
1  Bish.  Cr.  L.  (6tli  ed.)  §  414;  1  Russ. 
Cr.  (9th  ed.)  12. 

1  Wenz  V.  State,  1  Tex.  App.  36 
(1877). 

■2  Ferrell  v.  State, 43  Tex.  503  (1875). 

3  State  V.  Mowry,  37  Kan.  369 
(1887);  s.c.  10  Cr"  L.  Mag.  23;  15 
Pac.  Rep.  282. 

4  Pocket  V.  State,  5  Tex,  App.  552 
(1879) ;  Payne  v.  State,  5  Tex.  App. 
35  (1879)  ;  McCarty  v.  State,  4  Tex. 
App.  461  (1879);  Brown  ?•.  State,  4 
Tex.  App.  275  (1879);  Colbath  v. 
State,  4  Tex.  App.  76  (1879). 


244  HOMICIDE.  [chap.  VII. 

People  V.  Odell  ^  it  is  said  that  where  an  offence  is  divisible 
into  degrees,  evidence  of  the  intoxicated  condition  of  the 
accused  is  admissible  to  determine  how  the  act  was  affected 
by  volition ;  and  if  drunkenness  exists  to  such  a  degree  as  to 
render  one  incapable  of  forming  a  premeditated  design  to 
kill,  it  cannot  be  murder  in  the  first  degree.^  And  it  is  said 
in  Mclntyre  v.  People,-^  that  in  order  to  reduce  the  offence 
of  murder  to  manslaughter,  when  committed  by  a  drunken 
man,  it  is  not  essential  that  he  should  be  intoxicated  at  the 
time  of  killing  to  such  a  degree  as  to  be  unconscious  of  his 
acts,  or  incapable  of  forming  a  deliberate  purpose  of  taking 

life. 

As  a  general  rule,  intoxication  cannot  be  proven  to  reduce 
the  grade  of  the  crime,  or  to  show  that  the  act  was  pot  a 
crime,  or  to  prove  no  crime  was  committed;^  but  in  some 
cases  it  is  admissible  to  show  that  no  crime  was  committed, 
or  to  show  the  degree  or  grade  of  the  crime.  Thus  in  a  prose- 
cution for  maliciously  shooting,  evidence  that  the  defendant 
was  so  intoxicated  that  he  could  not  form  an  intent  to  wound, 
is  admissible.^ 

Sec.  211.    Same  —  Intoxication  as  a  rebuttal  of  malice. 

While  it  is  true  that  intoxication  will  not  excuse  crime, 

yet  it  may  be  considered  in  rebuttal  of  malice  in  connection 
with  other  facts,  and  it  may  be  admitted  in  evidence  to  show 
the  impulse  of  sudden  passion  under  provocation ;  but  where 
the  accused  determined  upon  the  act  when  sober,  and  forti- 
fied himself  with  liquor  to  commit  the  deed,  it  furnishes  no 
extenuation  of  the  offence.^ 

1  1  Dak.  Tr.  197  (1875).  (1848);     People  v.    Williams,   43  Cal. 

2  Cartwriglitc.  State,  BLca  (Tenn.)  344  (1872);  s.c.  1  Gr.  Cr.  Rep.  412; 
376  (1881).  People  r.  Harris,  29  Cal.  078  (1806)  ; 

3  38  111.514  (1865).  People  v.  K\n<i,  27  Cal.  507    (1805); 

4  Statei;.Sneed,88  Mo.  138  (1885).  People  v.  Belencia,  21  Cal.  544 
Into.xication  cannot  reduce  an  assault  (1803)  ;  Malone  v.  State,  49  Ga.  210 
with  intent  to  murder  to  an  aj^jira-  (1873)  ;  Henry  v.  State,  33  Ga.  441 
vated  assault.  Jeffries  v.  State,  9  (1803);  Golden  r.  State,  25  Ga.  527 
Tex.  App.  598  (1881).  (1853);  Hudgins  v.  State,  2  Ga.  173 

5  Cline  V.  State,  43  Ohio  St.  332  (1847).  See  Estes  v.  State,  55  Ga. 
(1885);  s.c.  1  N.  E.  Kep.  22;  P,arber  30  (1875);  Long  v.  State,  38  Ga. 
V.  State,  39  Ohio  St.  660  (1884).  491    (1868)  ;     Wise    v.    State,  34    Ga. 

c  Mooney  v.  State,  33  Ala.  419  348(1866);  Jones  ;;.  State,  29  Ga.  594 
(1859);   State  v.  Bullock,  13  Ala.  413     (1860);   Guilford  v.  State,  24  Ga.  323 


SEC.  211.] 


DEFENCES   TO    HOMICIDE. 


245 


Drunkenness  may  be  considered  by  the  juiy  like  any  other 
fact  to  shed  light  on  the  transaction. ^  Where  provocation 
by  a  blow  has  been  given  to  one  who  kills  another  with  a 
weapon  which  he  happens  to  have  in  his  hands,  his  drunken- 
ness may  be  considered  on  the  question  of  malice,  and  whether 
his  expressions  manifested  a  deliberate  purpose,  or  were 
merely  idle  expressions  of  a  drunken  man.^ 

Drunkenness  may  be  admitted  to  show  that  the  accused 
Avas,  at  the  time,  in  hot  blood,  and  peculiarly  susceptible  to 
a  supposed  insult ;  but  if  he  determined  upon  the  act  when 
he  was  sober,  and  fortified  himself  with  liquor  for  its  perpe- 
tration, or  did  the  act  deliberately,  his  intoxication  furnishes 
no   extenuation.^     It  is  said   in  the  case  of   Cartwright  v. 


(1858);  Diiwson  r.  Stnte,  IG  Ind. 
428  (18G1);.  State  v.  livU,  20  Iowa, 
31()  (1870);  State  v.  White,  l-t  Kan. 
538  (1875)  ;  Sliamialian  v.  Common- 
wealth, 8  Bush  (Ky.)  468  (1871)  ; 
Blimm  v.  Commonwealth,  7  Bush 
(Ky.)  320  (1870);  Smitli  i'.  Common- 
wealth, 1  Duv.  (Ky.)  224  (1804); 
Commonwealth  v.  Hawkins,  69  Mass. 
(3  Gray)  463  (1855);  Kelly  r.  State, 
11  Miss.  (3  Smed.  &  M.)  518  (1844); 
State  1-.  Harh)w,  21  Mo.  446  (1855)  ; 
Flanagan  v.  Peo])le,  52  N.  Y.  467 
(1873)  ;  s.c.  1  Gr.  Cr.  Rep.  377 ;  Peo- 
ple V.  Rofvers,  18  N.  Y.  9  (1858)  ; 
Kenney  r.  People,  27  How.  (N.  Y.) 
Pr.  202  (1863)  ;  Lanerj^an  v.  People, 
6  Park.  Cr.  Cas.  (N.  Y.)  209  (1863)  ; 
People  t;.  Kohiiison,  1  Park.  Cr.  Cas. 
(N.  Y.)  649  (1854)  ;  People  r.  Ham- 
mill,  2  Park.  Cr.  Cas.  (N.  Y.)  223 
(1855)  ;  Keenan  v.  Commonwealth,  44 
Pa.  St.  55  (1862)  ;  Penn.sylvania  r. 
MeFall,  Addis.  (Pa.)  255  (1794)  ; 
Haile  v.  State,  11  Humph.  (Teim.) 
154  (1850)  ;  Pirtle  i\  State,  9  Humph. 
(Tenn.)  663  (1849)  ;  Swan  v.  State, 
4  Humph.  (Tenn.)  1,36  (1843)  ;  Corn- 
well  V.  State,  Mart.  &  Yerp.  (Tenn.) 
147  (1827)  ;  Johnson  v.  State,  1  Tex. 
App.  146  (1877)  ;  Loza  ?;.  State,  1 
Tex.  App.  488  (1877)  ;  State  v.  Tatro, 
50  Vt.  483  (1878)  ;  Gwatkin  v.  Com- 
monwealtli,  9  Leigh  (Va.)  678  (18.39)  ; 
United  States  v.  Roudenbush,  Baldw. 


C.  C.  514  (1832).  See  Rex  v.  Thomas, 
7  Car.  &  P.  817  (1836)  ;  s.c.  .32  Kng. 
C.  L.  889  ;  Rex  i-.  Carroll,  7  Car.  &  P. 
145  (1835);  s.c.  32  Eng.  C.  L.  543  ; 
4  Bl.  Comm.  26  ;  1  Bish.  Cr.  L.  (6th 
ed.)  §  414 ;  Rose.  Cr.  Ev.  985. 

1  lianvey  r.  State,  68  Ga.  612 
(1882).  See  Shannahan  v.  Common- 
wealth, 8  Bush  (Ky.)  464  (1871). 

2  Rex  r.  Thomas,  7  Car.'  &  P.  317 
(1836)  ;  s.c.  32  Eng.  C.  L.  889. 

3  People  V.    Williams,  43    Cal.    344 

(1872)  ;  s.c.  1  Gr.  Cr.  Rep.  412  ;  State 
V.  Jolmson,  41  Conn.  584  (1874);- 
Malone  i.-.  State,  49  Ga.  210  (1873); 
Jones  V.  State,  29  Ga.  594  (I860)  ; 
Melntyre  v.  People,  38  111.  514  (1865); 
Cluek  V.  State,  40  Ind.  263  (1872); 
Dawson  r.  State,  16  Ind.  428  (1861)  ; 
Shannahan  r.  Commonwealth,  8  Bush. 
(Ky.)  463  (1871)  ;  Kriel  v.  Common- 
wealth, 5  Bush  (Ky-)  362  (1869); 
Curry  c. Commonwealth,  2  Bush  (Ky.) 
67  (1867)  ;  Smith  v.  Commonwealth, 
1  Duv.  (Ky.)  224  (1864)  ;  State  v. 
Mullen,  14  La.  An.  577  (1859) ;  Com- 
monwealth V.  Malone,  114  Mass.  295 

(1873)  ;  Commonwealth  v.  Hawkins, 
69  Mass.  (3  Gray)  463  (1855)  ;  State 
V.  Gut,  13  Minn.' 341  (1868)  ;  State  v. 
Garvey,  11  Minn,  154  (1866);  State 
V.  Hundley,  46  Mo.  414  (1870)  ;  s.c. 
Law.  Insan.  417;  State  v.  Cross,  27 
Mo.  332  (1858)  ;  State  v.  Harlow,  21 
Mo.    446    (1855)  ;    People  v.  Rogers, 


246  HOMICIDE.  [chap.  VII. 

State,^  that  if  drunkenness  exists  to  such  an  extent  as  to  render 
one  incapable  of  forming  a  premeditated  and  deliberate  design 
to  kill,  there  cannot  be  murder  in  the  first  degree.  If  drunken- 
ness exists  to  a  less  extenj:,  it  may  be  considered,  in  connec- 
tion with  all  the  facts,  to  ascertain  whether  the  purpose  to 
kill  was  formed  in  passion  produced  by  a  cause  operating 
upon  a  mind  excited  with  liquor,  —  not  such  adequate  provo- 
cation as  would  reduce  the  g-rade  of  the  homicide  to  man- 
slaughter,  but  such  as  to  produce  passion,  and  so  reduce  the 
killing  to  murder  in  the  second  degree ;  or  whether,  notwith- 
standing the  drunkenness,  the  purpose  to  kill  Avas  formed 
deliberately  and  with  premeditation,  which  may  exist  if  the 
drunkenness  is  not  too  great  to  render  the  mind  incapable  of 
such  operations. 

Sec.    212.     Same  —  As    disproving    criminal    intent. — 

While  it  is  true  that  drunkenness  at  the  time  of  committing 
the  act  is  not  admissible  to  disprove  criminal  intent  in  the 
case  of  a  wanton  killing  without  provocation,  yet  if  a  man 
was  so  drunk  that  he  did  not  know  wliat  he  w^as  doing,  that 
fact  may  be  proved  to  show  the  absence  of  a  specific  intent ; 
and  the  same  is  true  when,  from  the  facts,  the  intent  is  uncer- 
tain or  doubtful.^ 


18  N.  Y.  9  (1858)  ;  Friery  r.  People,  ferty  v.  People,  66  111.   118  (1872)  ; 

54  Barb.  (N.  Y.)  319  (1865)  ;  People  O'Herrin  v.  State,  14  Ind.  420  (1860); 

V.  Fuller,  2  Park.  Cr.  Gas.   (N.  Y.)   16  Gates  v.  Meredith,  7  Ind.  440  (1856)  ; 

(1823);  State  r.  John,  8  Ired.  (N.  C.)  State  v.   Bell,   29   Iowa,  316   (1870); 

L.   330    (1848)  ;    Jones    v.    Common-  People  v.  Garbutt,  17  Midi.  9  (1868); 

wealth,  75  Pa.  St.  403   (1874);  Kee-  State  v.  Gut,  13  Minn.  341    (1868); 

nan  v.  Commonwealth,  44  Pa.   St.  55  State  i;.  Garvey,  11  Minn.  154  (1866); 

(1862)  ;    Haile    v.   State,  11    Humph.  People  v.  Rogers,  18  N.  Y.  9  (1858)  ; 

(Tenn.)  154   (1850)  ;  Wenz  v.   State,  Nichols    r.    State,    8    Ohio    St.    435 

1  Tex.  App.  36  (1877)  ;  United  States  (1858) ;  Ferrell  (-.  State,  43  Tex.  503 

V.  Cornell,  2    Mas.  C.   C.  91   (1820)  ;  (1875)  ;  Wonz  v.  State,  1  Tex.  App. 

Rex  V.  Carroll,  7  Car.  &  P.  145  (1835);  36  (1877)  ;  Boswell  v.  Commonwealth, 

s.c.  32  Eng.  C.  L.  543.  20  Gratt.  (Va.)  860  (1871)  ;  State  v. 

1  8  Lea  (Tenn.)  376  (1881).  Schingen,  20    Wis.  74   (18(i5);  s.c.  5 

^People   V.    WilUnms,  43  Cal.  344  Chic.  Leg.  News,  100 ;  Rex  r.  Meakin, 

(1872);    s.c.    1    Gr.    Cr.    Rep.    412;  7  Car.  &  P.  297   (1836)  ;  s.c.  32  Eng. 

People  V.  Nichol,  34  Cal.  211   (1867) ;  C  L.  622.     See  Reg.  v.  Cruse,  8  Car. 

Estes   V.   State,   55    Ga.   30    (1875)  ;  &  P.  341   (1838)  ;  s.c.  34  Eng.  C.  L. 

Humphreys    v.    State,    45     Ga.    190  881  ;  Reg.  v.  MonkJiouse,  4  Cox.  C  C 

(1872);  Choice  v.  State,  31  Ga.  424  55  (1849);    Reg.  v.  Gamlen,  1  Fost. 

(I860)  ;  s.c.  Law.  Insan.  538  ;   Guil-  &  F.  90  (1858). 

ford  V.  State,  24  Ga.  323  (1858)  ;  Raf- 


SEC.  213.]  DEFENCES   TO    HOMICIDE.  247 

Intoxication  is  always  available  to  disprove  a  specific  intent, 
such  as  an  assault  with  intent  to  murder  or  to  do  bodily  harm, 
and  the  like.^  It  is  said,  in  the  case  of  Roberts  v.  People,^ 
that  where  a  statute  makes  an  offence  to  consist  of  an  act 
committed  with  a  particular  intent,  the  rule  that  voluntary 
intoxication  does  not  excuse  acts  which  constitute  an  offence, 
includes  only  the  consequences  which  do  actually  ensue, — 
the  crime  actually  committed,  and  not  the  intent  charged,  if 
the  defendant  was  at  the  time  incapable  of  entertaining  it, 
and  did  not,  in  fact,  entertain  it.  And  in  Lancaster  v.  State  ^ 
it  is  said  that  on  the  trial  of  an  indictment  for  an  assault  with 
intent  to  murdw,  the  drunkenness  of  the  accused  at  the  time 
charged  may  be  considered  by  the  jury  ;  it  may  have  produced 
a  state  of  mind  unfavorable  to  premeditation,  although  not 
so  excessive  as  to  render  him  incapable  of  forming  a  deliber- 
ate purpose. 

Sec  213.    Same  —  Insanity  resulting-  from  intoxication. 

—  Although  drunkenness  in  itself  is  no  palliation  or  excuse 
for  crime,  yet  mental  unsoundness,  superinduced  by  excessive 
intoxication,  and  continuing  after  the  intoxication  has  sub- 
sided, may  excuse ;  or  when  the  mind  is  destroyed  by  long- 
continued  habit  of  drunkenness,  or  where  tlie  habit  of  intoxi- 
cation caused  an  habitual  madness ;  and  where  a  person  is 
insane  at  the  time  he  commits  the  crime,  he  is  not  punishable, 
although  such  insanity  be  remotely  occasioned  by  undue  in- 
dulgence in  spirituous  liquors,  or  from  what,  in  a  moral  sense, 
is  a  criminal  neglect  of  duty.  For  if  the  reason  be  perverted 
or  destroyed  by  a  fixed  disease,  though  brought  on  by  his  own 
vices,  the  law  holds  him  not  accountable.*     But  temporary 

1  Mooney    r.    State,   33    Ala.    419  Reg.  v.  Cruse,  8  Car.  &  P.  541  (1838); 

(1859)  ;    Golliher   v.  Commonwealtli,  s.c.  34  Eng.  C.  L.  887  ;  Reg.  v.  Moore, 

2  Duv.  (Ky.)  163  (1865)  ;  Roberts  v.  3  Car.  &  K.  153  (1852). 
People,  19" Mich.  401  (1870)  ;  State  v.  2  19  Mich.  401  (1870). 

Garvey,  11  Minn.  154  (1866);   State  ^2  Lea  (Tenn.)  575  (1879). 

V.  Avery,  44  N.  H.  .392  (1862) ;  Real  *  Beasley    v.   State,    50    Ala.    149 

V.  People,  42  N.  Y.  270  (1870)  ;  Pig-  (1874)  ;  People  v.  Odell,  1  Dak.  Ter. 

man    i-.    State,  14  Ohio,  555  (1846);  197    (1875);  State    v.    McGonigal,    5 

Lytle  v.  State,  31  Ohio  St.  196  (1877);  Harr.    (Del.)    510    (1855);    State    i- 

Nichols    V.    State,    8    Ohio    St.    435  Dillahunt,  3  Harr.  (Del.)  551   (1842) 

(1858)  ;    State  v.  McCants,   1  Speers  Estes    i-.    State,  55    Ga.    30     (1875) 

(S.    C.)   384    (1843)  ;   United    States  Cluck   v.  State,  40  Ind.  263  (1872) 

t'.Roudenbush,  Bald.  C.C.  514  (1832);  Bailey  v.  State,  26  Ind.  422  (1866); 


248 


HOMICIDE. 


[chap.  VII. 


insanity,  resulting  immediately  from  voluntary  intoxication, 
does  not  destroy  legal  responsibility,  or  constitute  a  defence 
for  crime  ;  but  when  the  question  is,  whether  murder  is  of  the 
first  or  of  the  second  degree,  the  fact  of  drunkenness  may  be 
proved  to  show  the  mental  status  of  the  accused  at  the  time 
of  the  act,  and  thereby  enable  the  jury  to  determine  whether 
or  not  the  killing  resulted  from  a  deliberate  and  premeditated 
purpose.^  A  fixed  frenzy  '^  or  insanity,  as  delirium  tremens,^  or 
mania  a  potu^'^  destroys  all  legal  responsibility,  and,  although 
induced  by  voluntary  intoxication,  is  a  good  defence.  It 
annuls  responsibilit}-,  provided  the  mental  condition  can  stand 
the  tests  applied  in  other  forms  of  insanity.  The  insane  per- 
son is  no  more  punishable  for  his  acts  than  if  the  delirium 
had  proceeded  from  causes  not  under  his  control.^ 


Gates  V.  Meredith,  7  Incl.  440  (1856)  ; 
Smitli  V.  Coininonwealth,  1  Duv.  (Ky.) 
224  (1864);  Roberts  v.  People,  19 
Mich.  401  (1870)  ;  State  v.  Hundley, 
46  Mo.  414  (1870)  ;  s.c.  Law.  Insan. 
417  ;  State  v.  Thompson,  12  Nev.  140 
(1877)  ;  People  v.  Rogers,  18  N.  Y. 
9  (1858)  ;  People  v.  Eastwood,  14 
N.  Y.  562  (1856) ;  Lanergan  v.  People, 
50  Barb.  (N.  Y.)  266  (1867)  ;  O'Brien 
V.  People,  48  Barb.  (N.  Y.)  275  (1867), 
Maoonnehey  v.  State,  5  Ohio  St.  77 
(1855)  ;  Commonwealth  v.  Green,  1 
Ashm.  (Pa.)  289  (1826)  ;  Stuart  v. 
State,  57  Tenn.  178  (1873);  Haile  i-. 
State,  11  Humph.  (Tenn.)  154  (1850); 
Pirtle  V.  State,  9  Humph.  (Tenn.) 
663  (1849)  ;  Cornwell  r.  State,  Mart. 
&  Yerg.  147  (1827)  ;  Bennett  v.  State, 
Mart.  &  Yerg.  (Tenn.)  133  (1827); 
Carter  ;;.  State,  12  Te.x.  500  (1854)  ; 
Boswell  V.  Commonwealth,  20  Gratt. 
(Va.)  860  (1871);  United  States  v. 
Clarke,  2  Cr.  C.  C.  158  (1818)  ;  United 
States  V.  McGlue,  1  Curt.  C.  C.  1 
(1851)  ;  United  States  v.  Drew,  5 
Mas.  C.  C.  28  (1828)  ;  United  States 
V.  Cornell,  2  Mas.  C.  C.  91  (1820)  ; 
Rex  V.  Meakin,  7  Car.  &  P.  297  (1836); 
s.c.  32  Eng.  C.  L.  622  ;  Rennie's  Case, 
1  Lew.  C.  C.  76  (1825)  ;  1  Bish.  Cr. 
L.  (6th  ed.)  406;  McDonald's  C.  L. 
of  Scot.  16;  1  Hale  P.  C.  23;  4  Bl. 
Coram.  26. 


Voluntary  into.xication  affords  no 
excuse  for  crime,  unless  insanity  was 
produced  therebj%  and  the  defendant 
was  insane  when  the  act  was  com- 
mitted. State  V.  Paulk,  18  S.  C.  514 
(1882). 

1  Colbath  V.  State,  2  Tex.  App.  391 
(1878). 

2  See  post,  §  214. 
^  See  jiost,  §  215. 

*  Mania  a  potu  is  a  species  of  in- 
sanity. State  V.  Huxley,  Houst.  Cr. 
Cas.  (Del.)  28  (1858). 

^People  V.  Williams,  43  Cal.  344 
(1872);  s.c.  1  Gr.  Cr.  Rep.  412; 
State  i\  McGonigal,  5  Harr.  (Del.)  510 
(1855)  ;  State  r.  Dillahunt,  3  Harr. 
(Del.)  551  (1842)  ;  Fisher  v.  State, 
64  Ind.  435  (1878)  ;  Cluck  v.  State, 
40  Ind.  263  (1872);  Bradley  v.  State, 
31  Ind.  492  (1869)  ;  Bailey  v.  State,  26 
Ind.  423  (1866)  ;  ]:)awson  r.  State,  16 
Ind.  428  (1861)  ;  O'Herrin  r.  State,  14 
Ind.  420  (I860)  ;  Gates  v.  Meredith,  7 
Ind.  440  (1856)  ;  Smith  r.  Common- 
wealth, 1  Duv.  (Ky.)  224  (1864)  ; 
Roberts  v.  People,  19  Mich.  401  (1870); 
State  V.  Hundley,  46  Mo.  414  (1870)  ; 
s.c.  Law.  Insan.  417  ;  People  v.  Rog- 
ers, 18  N.  Y.  9  (1858)  ;  Lanergan  v. 
People,  50  Barb.  (N.  Y.)  266  (1867)  ; 
s.c.  6  Park.  Cr.  Cas.  (N.  Y.)  209 
(1863)  ;  O'Brien  v.  People.  48  Barb. 
(N.  Y.)  274  (1867)  ;   Maconnehey  v. 


SEC.  215.]  DEFENCES    TO    HOMICIDE.  249 

Sec.  214.  Same  —  Predisposition  to  insanity  from  intox- 
ication. —  The  supreme  court  of  Michigan  say  in  the  case  of 
Roberts  v.  People  ^  that  if  a  person  be  subject  to  a  tendency 
to  insanity  which  is  liable  to  be  excited  by  intoxication,  of 
which  he  is  ignorant,  having  no  reason  from  his  past  experi- 
ence, or  from  information  derived  from  others,  to  believe  that 
such  extraordinary  effects  are  likely  to  result  from  intoxica- 
tion, he  ought  not  to  be  held  responsible  for  such  extraordi- 
nary effects ;  and  so  far  as  the  jury  believe  that  his  actions 
resulted  from  these,  and  not  from  the  natural  effects  of 
drunkenness,  or  from  previously  formed  intentions,  the  same 
degree  of  competency  should  be  required  to  render  him  capa- 
ble of  entertaining  or  being  responsible  for  the  intent,  as 
when  the  question  is  one  of  insanity  alone.  The  same  court 
say,  in  the  case  of  People  v.  Cummins,^  that  where  the 
defence  of  temporary  insanity  proceeck  upon  the  theory  that 
it  was  induced  by  the  operation  of  strong  drink  upon  a  mind 
rendered  unsound  by  an  injury  to  the  brain,  it  is  error  to 
leave  the  question  of  criminal  responsibility  to  be  determined 
upon  the  facts  of  injury  and  mental  unsoundness  alone,  or 
upon  the  effects  of  intoxication  apart  from  the  other  facts. 

While  it  is  true  that  drunkenness  in  itself  is  no  excuse  or 
palliation  for  crime  committed  wdiile  under  its  influence,  yet 
mental  unsoundness  superinduced  by  excessive  drunkenness, 
and  continuing  after  the  intoxication  has  subsided,  may  be  an 
excuse ;  ^  and  if  permanent  insanity  is  produced  by  habitual 
drunkenness,  then,  like  insanit}^  produced  by  any  other  cause, 
it  excuses  acts  which  otherwise  would  be  criminal."^ 

Sec.  215.  Same  —  Fixed  frenzy.  —  While  it  may  be  true 
that  the  voluntarily  contracted  and  temporary  madness  pro- 
duced by  drunkenness  is  rather  an  aggravation  of,  than  an 

State,  5  Ohio  St.  77(1855);  Common-  Curt.  C.  C.  1   (1851);    United  States 

wealth  V.  Green,   1   Ashm.    (Pa.)   289  r.  Drew,  5    Mas.    C    C.   28    (1828) ; 

(1826);    Cornwell   v.   State,   Mart.  &  Watson's  Case,  Tayl.  Med.  Jur.  650 ; 

Yerg.  (Tenn.)   147   (1827)  ;  Carter  v.  Simpson's  Case,  Tayl.  Med.  Jur.  650. 

State,  12    Tex.  500    (1854)  ;    Boswell  '  10  Mich.  401  (i870). 

V.    Commonwealth,    20    Gratt.    (Va.)  2  47  Mich.  3.S4  (1882). 

860  (1871)  ;  United  States  v.  Clarke,  3  Beasley    v.    State,    50    Ala.    149 

2  Cr.  C.  C.  158  (1818)  ;  United  States  (1874). 

V.   Forbes,   Crabbe,    U.   S.  D.  C.  558  *  State  r.  Robinson,  20  W.  Va.  713 

(1845);  United   States  i-.  McGlue,  1  (1882);  s.c.  43  Am.  Kep.  799. 


250 


HOMICIDE. 


[chap.  YII. 


apology  for,  a  crime  committed  during  that  state,  yet,  when  an 
habitual  and  fixed  frenzy  is  produced  by  drunkenness,  the  man 
is  in  the  same  condition  as  if  it  was  contracted  involuntarily 
and  from  a  cause  other  than  the  use  of  strong  drink  in  excess.^ 

Sec.  21G.  Same  —  Delirium  tremens.  —  Although  drunk- 
enness is  no  excuse  for  crime,  yet  "it  is  held  that  if  delirium 
tremens  caused  by  excessiv^e  drinking  produces  such  a  degree 
of  madness  as  to  render  the  person  incapable  of  distinguishing 
right  from  wrong  at  the  time  the  offence  is  committed,  he  is 
relieved  from  responsibility.^  And  where  a  man  has  volunta- 
rily indulged  his  appetite  for  strong  drink  to  such  an  extent 
as  to  permanently  destroy  his  reason  and  render  him  insane, 
while  he  is  thus  insane  he  will  be  excused  from  a  crime  com- 
mitted while  in  this  condition,  the  same  as  if  his  mental 
faculties  had  been  destro3^ed  by  another  disease.'^  But  it  is 
thought  that  temporary  insanity  produced  immediately  by 
intoxication  is  no  excuse  for  homicide.'* 


1  State  V.  McGonigal,  5  Harr. 
(Del.)  510  (1855)  ;  Mercer  v.  State, 
17  Ga.  146  (1855)  ;  Tyra  v.  Common- 
wealth, 2  Met.  (Ky.)  1  (1859)  ; 
Schaller  v.  State,  14  Mo.  502  (1851)  ; 
Kenny  v.  People,  ;51  N.  Y.  330  (1805)  ; 
Carter  v.  State,  12  Tex.  500  (1854)  ; 
United  States  v.  Clarke,  2  Cr.  C.  C. 
158  (1818) ;  United  States  r.  McGlue, 
1  Curt.  C.  C.  1  (1851)  ;  United  States 
V.  Drew,  5  Mas.  C  C.  28  (1828)  ; 
United  States  v.  Forbes,  Crabbe,  U.  S. 
D.  C.  558  (1845). 

2  Reg.  V.  Davis,  14  Cox  C.  C.  563 
(1881)  '■  s.c.  28  Moak,  Eng.  Rep.  057. 

3  Ford  V.  State,  71  Ala.  385  (1882)  ; 
s.c.  5  Cr.  L.  Mag.  32;  Tidwell  v. 
State,  70  Ala.  33  (1881);  People  r. 
Ferris,  55  Cal.  589  (1880)  ;  s.c.  2  Cr. 
L.  Mag.  18;  People  v.  Williams,  43 
Cal.  344  (1872)  ;  s.c.  1  Gr.  Cr.  Rep. 
412;  People  v.  Belencia,  21  Cal.  544 
(1803)  ;  State  v.  Johnson,  40  Conn. 
136  (1873)  ;  s.c.  41  Conn.  584;  2  Gr. 
Cr.  Rep.  487  ;  Law.  Insan.  603  ;  Jones 
V.  State,  29  Ga.  594  (1860);  Golden 
f.  State,  25  Ga.  527  (1853)  ;  Dawson 
V.  State,  10  Ind.  428  (1801)  ;  Blimm  v. 
Commonwealtli,  7  Hush  (Ky.)  320 
(1870)  ;  s.c.  10  Am.  L.  Reg.  (N.  S.) 


577;  State  v.  Trivas,  32  La.  An.  1086 
(1880)  ;  s.c.  36  Am.  Rep.  293;  Com- 
monwealth V.  Dorsey,  103  Mass.  412 
(1869);  State  v.  Gut,  13  Minn.  341 
(1868);  Schlcncker  v.  State,  9  Neb. 
241  (1879) ;  State  r.  Thompson,  12 
Nev.  144  (1877) ;  State  v.  Martin 
(N.  J.)  3  Cr.  L.  Mag.  44  (1881)  ;  Peo- 
ple V.  Rogers,  18  N.  Y.  9  (1858)  ;  Peo- 
ple V.  Cassiano,  .30  Hun.  (N.  Y.)  388 
(1883)  ;  Jones  v.  Commonwealth,  75 
Pa.  St.  403  (1874);  Keenan  v.  Com- 
monwealth, 44  Pa.  St.  55  (1862); 
Kelly  V.  Commonwealth,  1  Grant.  (Pa.) 
484  (1858)  ;  Commonwealth  v.  Piatt, 
11  Phila.  (Pa.)  421  (1876);  Haile  v. 
State,  11  Humph.  (Tenn.)  156  (1850)  ; 
Pirtle  V.  State,  9  Humph.  (Tenn.)  663 
(1849);  Cartwright  r.  State,  8  Lea 
(Tenn.)  .376  (1881)  ;  Holmes  r.  State. 
11  Tex.  App.  223  (1882)  ;  Willis  r. 
Conmionwealth,  .32  Gratt.  (Va.)  929 
(1879)  ;  s.c.  in  note  40  Am.  Rep.  560; 
State  I'.  Robinson,  20  W.  Va.  713 
(1882);  s.c.  43  Am.  Rep.  799;  Hopt 
1-.  People,  104  U.  S.  (14  Otto)  631 
(1881);  bk.  20  L.  ed.  873. 

*  Upstone   r.   People,  109   111.   169 
(1883)  ;  s.c.  18  Rep.  203. 


SEC.  218.]  DEFENCES   TO    HOMICIDE.  251 

Sec.  217.  Same  —  Involuntary  intoxication  as  an  excuse 
for  crime.  —  If  a  person  be  made  drunk  by  the  fraud  or  strata- 
gem of  another,  or  by  the  unskilfulness  of  his  physician,  he 
is  not  responsible  for  his  acts  ;  and  a  man,  owing  to  tempo- 
rary debility  or  disease,  maddened  by  the  quantity  of  wine 
which  he  usually  takes  in  his  normal  condition,  is  not  volun- 
tarily insane.^ 

Sec.  218.  Same  —  Somnambulism  as  a  defence.  —  In 
1846,  in  the  case  of  Commonwealth  v.  Tirrell,^  Rufus  Choate 
made  his  now  celebrated  defence  of  Albert  J.  Tirrell  in  which 
lie  set  up  the  novel  defence  of  somnambulism.  Tirrell  was  in- 
dicted for  the  murder  of  his  mistress.  The  facts  of  the  case 
as  developed  on  the  trial  were  as  follows :  Between  four  and 
five  o'clock  on  Monday  morning,  October  27,  1845,  a  young 
woman  named  Maria  Brickford  was  found  dead  in  a  house 
of  bad  repute  kept  by  one  Joel  Lawrence.  Albert  J.  Tirrell, 
a  person  of  respectable  family  and  connections,  but  of  vicious 
life,  and  already  under  indictment  for  adultery,  was  known 
to  have  been  with  her  on  the  previous  afternoon  and  late  in 
the  evening,  after  the  doors  of  the  house  were  locked  for 
the  night.  He  had  long  been  a  paramour  of  hers,  and  for  her 
company  had  forsaken  his  own  wife.  On  the  morning  spoken 
of,  several  inmates  of  the  house  were  early  aroused  by  a  cry, 
coming  apparently  from  the  room  occupied  by  these  persons, 
followed  ])y  a  sound  as  of  a  heavy  body  falling  on  the  floor. 
Soon  afterward  some  one  was  heard  going  down  stairs, 
making  an  indistinct  noise  as  if  stifled  by  smoke;  and  almost 
immediately,  those  in  the  house  Avere  alarmed  by  the  smell 
and  appearance  of  fire.  After  the  fire  was  extinguished, 
which  was  done  by  the  help  of  a  fireman  and  a  neighbor,  the 
body  of  Mrs.  Brickford  was  found  on  the  floor  of  the  room 
she  had  occupied,  and  where  the  fire  principally  was,  at  some 
distance  from  the  bed ;  her  throat  cut  to  the  bone  from  ear 
to  ear;   her  body  was  burnt;  a  considerable  pool  of   blood 

1  See  Stater.  Johnson,  40  Conn.  l.'iG  (1870)  ;  Roberts  v.  People,  19  Mich. 

(1873);  s.c.  41  Conn.  584  ;  2  Gr.  Cr.  401    (1870);    People    v.    Robinson,    1 

Rep.  487;    Law.  Insan.   60.S  ;    Choice  Park.  Cr.  Cas.   (N.  Y.)  649    (1854)  ; 

V.  State,  31  Ga.  424  (1860)  ;  s.c.  Law.  Harris'  Cr.  L.  25. 

Insan.    5.38;    Bartholomew    v.   People,  2  Kerr's  Before  and  At  Trial,  270 ; 

104  111.  605   (1882)  ;  s.c.  44  Am.  Rep.  1  Am.  L.  J.  Ohio,  68  ;  Brown's  Life  of 

97  ;    Rogers    v.    State,    33    Ind.   543  Choate,  174. 


252  HOMICIDE.  [chap.  VII. 

was  upon  the  bed;  a  bowl  upon  the  washstand  in  the  corner  of 
the  room,  with  water  in  it,  thick  with  blood ;  marks  of  blood 
upon  the  washstand  and  the  lamp  on  the  mantelpiece ;  the 
bed-clotlies  piled  up  in  various  places  in  the  room  and  in  the 
entry,  that  were  partly  consumed ;  a  bloody  razor  near 
the  body ;  also  some  stockings,  a  cravat,  and  a  cane,  belong- 
ing to  Tirrell.  Besides  this,  a  fire  was  kindled  in  an  adjoining 
room  which  was  not  occupied  that  night.  A  woman  in  the 
next  house,  separated  from  Lawrence's  by  a  brick  partition, 
was  waked  that  morning  by  a  screech  as  from  a  grown  child  ; 
but  on  listening  heard  the  voice  of  a  woman  ;  then  she  heard 
a  strangling  noise,  and  afterwards  a  fall,  and  then  a  louder 
noise. 

It  was  also  shown  on  the  trial  that  Tirrell  had  called  in 
haste,  very  early  on  that  Monday  morning,  at  a  livery  stable 
near  Bowdoin  Square,  saying  that  he  had  got  into  trouble ; 
that  somebody  had  come  into  his  room  and  tried  to  murder 
him,  and  that  he  wanted  a  horse  and  vehicle  and  to  be  taken 
out  of  town.  These  were  furnished,  and  he  was  driven  to 
Weymouth.  He  also  had  called  between  foiu^  and  five  o'clock 
at  the  house  of  one  Head,  in  Alden  Court,  not  far  from  the 
livery  stable,  and  asked  for  some  clothes  wliich  he  had  left 
there,  saying  that  he  was  going  to  Weymouth.  The  officers 
who  went  in  search  of  him  on  the  same  day  did  not  succeed 
in  finding  him ;  but  some  months  afterAvard  he  was  arrested 
in  New  Orleans  and  brought  to  Boston  for  trial,  and  was 
acquitted. 

In  the  recent  case  of  Fain  v.  Commonwealth, ^  somnambulism 
was  interposed  as  a  defence.  In  that  case  the  prisoner  and 
his  friend,  George  Welch,  went  to  the  Verenda  Hotel  after 
dark,  on  an  evening  in  February.  The  weather  was  cold, 
and  there  was  snow  upon  the  ground.  They  sat  down  in  the 
public  room  and  went  to  sleep.  In  a  short  time  Welch  awoke, 
and  finding  the  deceased  in  the  barber's  shop,  in  the  next 
room,  called  for  a  bed  for  himself  and  the  prisoner,  to  pay 
for  which  he  handed  the  deceased  a  bill.  Welch  attempted 
to  awaken  the  prisoner  by  shaking  him,  but  failed.  He  then 
told  the  deceased  to  wake  him  up.  The  deceased  shook  him 
for  some  time,  and  failing  to  wake  him,  said  he  believed  he 

1  78  Ky.  183  (1879)  ;  s.c.  39  Am.  Rep.  21-3. 


SEC.  218.]  DEFENCES   TO    HOMICIDE.  253 

was  dead.  Welch  said,  ''  No,  he  is  not ;  wake  him  up."  The 
deceased  shook  him  harder  and  harder  until  the  .prisoner 
looked  up  and  asked  what  he  wanted.  The  deceased  said 
that  he  wanted  him  to  go  to  bed.  The  prisoner  said  he  would 
not,  and  told  the  deceased  to  go  away  and  let  him  alone.  The 
deceased  said  it  was  getting  late,  and  he  wanted  to  close  the 
house,  and  still  holding  the  prisoner  by  the  coat,  the  latter 
either  raised  or  was  lifted  up,  and  as  he  arose  he  threw  his 
hand  to  his  side  as  if  to  draw  a  weapon.  A  bystander  said  to 
him,  "  Don't  shoot"  ;  but  without  noticing  or  giving  any  sign 
that  he  heard  wliat  was  said,  he  drew  a  pistol  and  fired.  The 
deceased  instantly  grappled  him  to  prevent  liira  from  shoot- 
ing again,  but  a  second  shot  was  fired  almost  immediately 
and  a  third  soon  followed.  After  the  third  shot  Avas  fired  the 
prisoner  was  thrown  down  and  held  by  the  deceased.  The 
prisoner,  while  being  held  on  the  floor,  halloed  hoo-wee  very 
loud  two  or  three  times,  and  called  for  Welch.  He  asked 
the  deceased  to  let  him  get  up  ;  but  the  deceased  said,  "  If  I 
do  you  will  shoot  me  again."  The  prisoner  said  he  would 
not,  and  the  deceased  released  his  hold  and  allowed  him  to 
get  up.  Upon  getting  up  the  prisoner  went  out  of  the  room 
with  his  pistol  in  his  hand.  His  manner  was  that  of  a  fright- 
ened man.  He  said  to  a  witness,  "  Take  my  pistol  and  defend 
me  " ;  said  he  had  shot  some  one,  but  did  not  know  who  it 
was,  and  upon  being  told  who  it  was,  expressed  sorrow  for 
what  he  had  done.  It  did  not  appear  that  the  prisoner  knew 
or  had  ever  seen  the  deceased  before.  There  was  not  the 
slightest  evidence  of  a  motive  on  his  part  to  injure  the 
deceased,  nor  does  there  appear  to  have  been  anything  in 
what  the  deceased  did  or  the  manner  of  doing  it  which,  the 
facts  being  understood,  was  calculated  to  excite  anger,  much 
less  a  desire  to  kill  him.  At  that  time  the  prisoner  was  about 
thirty-three  years  of  age,  and  he  introduced  evidence  to  show 
that  he  had  been  a  man  of  good  character  and  of  peaceably 
and  orderly  habits. 

He  also  offered  to  prove  that  he  had  been  a  sleep-walker 
from  his  infancy;  that  he  had  to  be  watched  to  prevent 
injury  to  himself ;  that  he  was  put  to  sleep  in  a  lower  room 
near  that  of  his  parents,  and  a  servant-man  was  required  to 
sleep  in  the  room  to  watch  him;  that  frequently  when  aroused 


254  HOiNnciDE.  [chap.  vii. 

from  sleep  he  seemed  frightened  and  attempted  violence,  as 
if  resenting  an  assault,  and  for  some  minutes  seemed  uncon- 
scious of  what  he  did  or  what  went  on  around  him;  that 
sometimes  when  partly  asleep  he  resisted  the  servant  who 
slept  in  the  room  with  him,  as  if  he  supposed  the  servant  was 
assaulting  him. 

He  also  offered  to  prove  by  medical  experts  that  persons 
asleep  sometimes  act  as  if  awake ;  that  they  walk,  talk,  an- 
swer questions,  and  do  many  other  things,  and  yet  are  uncon- 
scious of  what  they  do ;  that  with  many  persons  there  is  a 
period  between  sleeping  and  waking  in  which  they  are  uncon- 
scious, though  they  seem  to  be  awake ;  that  loss  of  sleep  and 
other  causes  which  produce  nervous  depression  or  mental 
anxiety  may  produce  such  a  state  of  unconsciousness  between 
sleep  and  waking:  and  that  for  some  days  previous  his  chil- 
dren had  been  afflicted  with  a  dangerous  disease,  and  he  had 
in  consequence  lost  much  sleep. 

He  likewise  offered  to  prove  that  his  life  had  been  threat- 
ened by  a  person  living  near  where  he  had  been  on  bu:;iness 
during  the  day,  and  that  he  had  that  morning  borrowed  the 
pistol  with  which  he  shot  the  deceased,  and  that  he  stated  at 
the  time  that  he  was  required  to  go  near  to  where  the  i)erson 
lived  who  had  threatened  him,  and  he  wanted  the  pistol  to 
defend  himself  in  case  he  was  attacked. 

On  appeal  it  was  held  that  under  such  circumstances  it  is 
competent  to  show  that  the  defendant  had  always  been  a 
somnambidist,  had  recently  lost  much  sleep,  and  had  recently 
had  his  life  threatened  by  another  than  the  deceased. 

It  is  thought,  however,  that  if  when  the  first  shot  was  fired 
he  was  so  far  unconscious  that  he  supposed  he  was  resenting 
a  dangerous  assault  by  one  who  had  threatened  him,  that  the 
homicide  would  be  excusable  ;  but  that  if  he  regained  con- 
sciousness before  he  fired  the  second  or  third  time,  his  guilt 
or  innocence  would  depend  on  the  fact  whether  or  not  he 
honestly  believed  that  he  was  then  in  danger  of  great  bodily 
injury. 


CHAPTER   VIII. 

TOIE   WITHIN   WHICH   PROSECUTION    TO   BE    INSTITUTED. 

Sec.  219.     Limitation  of  prosecution. 

Sec.  220.     Same  —  Statute  must  be  pleaded. 

Sec.  221.  .  Same —  Wlien  statute  ceases  to  run. 

Sec.  222.     In  prosecutions  for  murder. 

Sec.  223.     In  prosecutions  for  manslaughter. 

Sec.  219.  Limitation  of  prosecution.  —  At  common  law 
there  is  no  limitation  of  tlie  time  in  which  a  homicide  must 
be  prosecuted ;  but  in  many  jurisdictions  in  this  country  there 
are  now  statutes  providing  that  indictments  for  liomicide  — 
generall}^  the  lesser  grades  of  that  offence  —  must  be  brought 
within  a  prescribed  time  in  order  to  subject  the  offender  to  con- 
viction and  punishment.  As  a  rule  there  is  no  time  limited 
after  the  commission  of  a  crime  within  which  the  indictment 
must  be  preferred.  The  offender  is  continually  liable  to  be 
apprehended  and  visited  with  the  penalties  of  the  criminal 
law.  By  particular  statutes,  however,  there  are  exceptions 
to  this  rule,  a  stated  time  being  fixed  after  which  criminal 
proceedings  cannot  be  commenced.  When  a  time  is  thus 
fixed  within  which  the  prosecution  shall  be  commenced,  if 
an  indictment  is  found  after  the  expiration  of  such  time,  the 
"  plea  of  limitation  "  will  be  valid.^  The  indictment  will  be 
bad  on  the  '"plea  of  limitation"  being  entered,^  and  the  i-ight 
to  prosecute  thereafter  will  be  barred.'^  Thus  it  has  been 
held  that  Avhere  the  indictment  must  be  found  within  one 
year  from  the  date  of  the  commission  of  the  offence,  proof 
tending  to  show  that  it  was  committed  more  than  a  year  prior 
to  the  finding  of  the  indictment  will  not  support  a  conviction.* 

1  Harris'  Cr.  L.  345.  =>  Anderson  v.  State,   20   Fla.    381 

2  Harris'  Cr.  L.  345.     See  Swallcy      (1883). 

V.  People,  116  111.  247  (1886)  ;  s.c.  4  *  State  v.  Hopper,  21  Mo.  App.  510 

N.  E.  Kep.  379;  State   i'.  Hawks,  38      (1886). 
La.  An.  468  (1886)  ;  State  v.  Hopper, 
21  Mo.  App.  510  (1886). 

255 


236  HOMICIDE.  [chap.  Vlll. 

In  computing  the  running  of  the  statute  the  fractions  of 
a  day  will  not  be  observed,  the  rule  being  to  exclude  the  first 
day  and  include  the  last.^  Thus  where  the  statute  prescrib- 
ing a  two  years'  limitation,  and  the  offence  having  been  com- 
mitted in  March,  1880,  the  indictment  was  found  in  April, 
1882,  the  judgment  of  conviction  was  arretted  and  the  pris- 
oner discharged ;  ^  but  where  a  crime  was  committed  Decem- 
ber 13, 1878,  and  an  indictment  was  found  therefor  December 
13,  1880,  it  was  held  good  under  a  two  years'  limitation.^  In 
Swalley  v.  People*  the  state's  attorney  entered  a  nolle  pro- 
sequi to  an  indictment,  and  the  court  ordered  the  defendants 
therein  named  to  be  discharged  ;  the  manner  of  disposal  of 
such  indictment  amounted  to  a  setting  aside  of  the  proceed- 
ings under  it,  and  comes  within  the  saving  clause  of  a  sec- 
tion limiting  a  second  indictment  for  the  same  offence. 

Sec.  220.  Same  —  Statute  must  be  pleaded.  —  The  stat- 
ute of  limitations  must  be  specially  pleaded,''^  because  the 
law  does  not  allow  that  question  to  lie  raised  under  a  motion 
in  arrest  of  judgment.  Limitation  proper  is  a  matter  of  de- 
fence and  should  be  pleaded  or  given  in  evidence  by  the 
accused.  The  supreme  court  of  the  United  States  say,  in 
the  case  of  United  States  i\  Cook,^  that  "argument  to  show 
that  a  demurrer  to  an  indictment  admits  every  matter  of  fact 
which  is  well  pleaded  is  unnecessar}',  as  the  proposition  is  not 
denied ;  and  inasmuch  as  the  offence  is  well  alleged  in  each 
of  the  counts  to  which  the  demurrer  applies,  it  is  difficult  to 
see  upon  Avhat  ground  it  can  be  contended  that  the  defendant 
may,  by  demurrer,  set  up  the  statute  of  limitations  as  a  de- 
fence, it  appearing  beyond  all  doubt  that  the  act  defining  the 
offence  contains  neither  an  exception  nor  a  proviso  of  any 
kind.  Tested  by  the  princi[)les  herein  suggested,  it  is  quite 
clear  that  such  a  theory  cannot  be  supported ;  but  it  must  be 
admitted  that  decided  cases  are  referred  to  which  not  only 
countenance  that  view,  but  adjudge  it  to  be  correct.  Some 
of  the  cases,  however,  admit  that  the  judgment  cannot  be 

1  Savage  1-.  State,  18 Fla.  970  (1882).  <  IIG  III.  '247  (1880);  s.c.  4  N.  E. 

2  Anderson   v.  State,   20   Fla.   08I     Rep.  .379. 

(188.3).  5  State    r.   Tlirasher,    79    Me.    17 

■'Savage     v.    State,    18    Fla.    970     (1887) ;  s.c.  7  Atl.  Kep.  814. 
(1882).  «  84  U.  S.  (17  Wall.)   108  (1872)  ; 

bk.21,  L.  ed.  538. 


SEC.  222.]  PROSECUTION    TO   BE   INSTITUTED. 


257 


arrested  for  siicli  a  defect,  if  it  appears  that  the  statute  of 
limitations  contains  any  exception,  as  the  presumption  in  that 
state  of  the  case  would  be  that  evidence  was  introduced  at 
the  trial  which  brought  the  defendant  within  some  one  of 
the  exceptions."^ 

Sec.  221.  Same  —  When  statute  ceases  to  rim.  —  The 
statute  of  limitations  against  the  prosecution  for  a  crime  does 
not  run  while  a  prosecution  is  pending.'^  Thus  it  has  been 
held  that  where  a  prosecution  is  dismissed  because  the  indict- 
ment is  not  signed  and  indorsed  as  required  by  statute,  an 
entry  of  record  may  be  mada  stating  the  facts  and  ordering 
another  indictment  to  be  found ;  and  a  new  indictment  being 
found,  the  time  which  elapsed  between  the  finding  of  the  two 
indictments  must  be  deducted  in  computing  the  time  under 
the  statute.^  Neither  will  the  statute  of  limitations  run 
against  the  state  in  favor  of  one  charged  with  a  felony  who 
shall  ''  flee  from  justice."  It  is  not  necessary  to  constitute 
one  a  fugitive  from  justice,  within  the  meaning  of  the  statute, 
that  he  should  leave  the  state ;  one  who  conceals  himself  to 
avoid  arrest  is  a  fugitive  from  justice,  although  such  conceal- 
ment be  upon  his  own  premises.* 

Sec.  222.  In  prosecution  for  murder.  —  ^Murder  is  one 
of  the  gravest  crimes  known  to  the  law,  and,  consequently,  no 
time  is  usually  prescribed  within  which  the  charge  against  the 
offender  must  be  preferred,  but  he  is  continually  liable  to  be 
apprehended  and  punished.  There  are,  however,  occasionally 
exceptions  to  this  rule,  but  generally  they  limit  the  prosecu- 
tion of  the  lower  degrees  of  the  crime.^  An  accessory  before 
the  fact  to  the  crime  of  murder  is  guilty  of  murder,  and, 
therefore,  the  time  for  the  prosecution  of  his  offence  is  not 

1  SeeStater.  Rust,  SBlackf.  (Iml.)  an  indictment  for  murder,  cannot  be 
195  (1846);  State  v.  Hobbs,  39  Me.  sustained  where  the  offence  was  not 
212  (1855);  People  v.  Santvoord,  9  prosecuted  within  two  years  next  after 
Cow.  (N.  Y.)  660  (1827).  it   was    committed,    as    provided    in 

2  Swalley  v.  People,  110  111.  247  Thomp.  Fla.  Dig.  490;  Nelson  r.  State, 
(1886)  ;  s.c.  4  N.  E.  Kep.  379.  17  Fla.  195  (1879).     In  Louisiana  the 

•    3  Smith     V.     State,     79     Ala.    21  prescription  of  one  year  for  prosecu- 

(1885).  tion  for  murder  runs  from  the  death 

*  State   V.    Harvell,    89     Mo.    588  of  the  deceased,    and    not   from   the. 

(1886)  ;  s.c.  1  S.  W.  Eep.  837.  woundinsr  of  or  the  arrest.     State  i'. 

5  In  Florida  a  conviction  of  murder  Taylor,  31  La.  An.  851  (1879). 
in  the  third  degree,  although  had  on 

17 


258  HOMICIDE.  [chap.  VIII. 

limited  in  the  absence  of  a  limitation  of  the  prosecution  for 
murder.^ 

Sec.  223.  In  prosecutions  for  manslaug^hter.  —  Statutes 
limiting  the  time  within  which  to  charge  a  person  with  the 
crime  of  manslaughter  are  found  in  many  of  the  states ;  ^  and 
a  conviction  for  that  offence  will  not  be  sustained  by  an  in- 
dictment found  after  the  expiration  of  the  prescribed  time, 
dating  from  the  commission  of  the  offence,  even  though  the 
indictment  charges  the  crime  of  murder,  for  which  offence 
the  time  of  prosecution  is  not  limited.^  Thus  it  has  been 
held  that  a  conviction  for  manslaughter,  though  had  on  an 
indictment  for  murder,  cannot  be  sustained  unless  the  indict- 
ment was  presented  within  the  time  limited  by  the  statute 
under  which  the  prosecution  was  had.*  And  in  State  v.  Free- 
man ^  a  conviction  of  manslaughter  on  an  indictment  found 
beyond  the  statutory  limit  within  which  the  offence  is  per- 
mitted to  be  prosecuted  was  set  aside,  altliough  the  courts 
had  been  closed,  on  account  of  the  war,  for  a  part  of  the 
time,  there  being  no  averment  to  that  effect  in  the  indictment. 

1  Peoples.  Mather,  4  Wend.  (N.Y.)  69  (1805);  People  v.  Burt,  51  Mich. 
229  (1830)  ;  s.c.  21  Am.  Dec.  122.  199  (1883)  ;  s.c.  16  N.  W.  Rep.  378; 

2  People  V.  Miller,  12  Cal.  291  Riggs  v.  State,  30  Miss.  635  (1856) ; 
(1859)  ;  State  v.  Freeman,  17  La.  An.  White  v.  State,  4  Tex.  App.  488 
69  (1865);  People  v.  Burt,  51  Mich.  (1879). 

199  (1883)  ;  s.c.  16  N.  W.  Rep.  378;  •*  State  v.  Freeman,  17  La.  An.  69 

Riggs  V.  State,  .30  Miss.  635  (1856)  ;  (1865)  ;  Riggs  v.  State,  30  Miss.  6.35 

White    V.    State,   4    Tex.    App.    488  (1856) ;  White  v.  State,  4  Tex.  App. 

(1879).  488  (1879). 

3  People    i;.   Miller,    12    Cal.    291  &  17  La.  An.  69  (1865). 
(1859)  ;  State  i;.  Freeman,  17  La.  An. 


CHAPTER  IX. 

JURISDICTION. 

Sec.  224.  Venue. 

Sec.  225.  Jurisdiction  as  to  place  —  Of  the  state  courts. 

Sec.  226.  Same — At  common  law. 

Sec  227.  Same  —  Of  the  federal  courts. 

Sec  228.  Offences  commenced  in  one  jurisdiction  and  completed  in  another. 

Sec  229.  Jurisdiction  as  to  the  person. 

Sec.  230.  Jurisdiction  as  to  the  court. 

Sec.  224.  Venue.  —  To  support  a  conviction  of  homicide 
it  is  as  important  to  prove  that  the  offence  was  committed  in 
the  county  where  it  is  charged  to  have  been  committed  as 
to  prove  that  the  defendant  committed  it ;  the  venue  must 
be  established  by  either  direct  or  indirect  testimony,  and 
cannot  be  inferred.  Where  it  is  established  by  neither,  this 
in  itself  is  fatal  to  the  conviction.^  Thus,  in  the  case  of 
Reg.  V.  Moore,2  the  prisoner  was  convicted  at  Quebec  of  man- 
slaughter. He  and  the  deceased  were  serving  on  board  a 
British  ship,  and  the  latter  died  in  the  district  of  Kamouraska, 
where  the  ship  was  loading,  from  injuries  by  the  former 
on  board  the  ship  on  high  seas.  On  reserved  case  it  was 
held  that,  as  the  deceased  had  been  hurt  upon  the  sea,  and 
the  death  happened  in  another  district,  the  defendant  should 
have  been  tried  there,  and  not  in  the  district  of  Quebec,  and 
that  for  this  reason  the  conviction  was  wrong. 

Sec.  225.  Jurisdiction  as  to  place  —  Of  the  state  courts. 
—  The  question  as  to  the  jurisdiction  over  a  homicide  com- 
mitted in  a  particular  place  is  governed  by  the  same  rules 
that  apply  to  all  other  felonies  in  the  jurisdiction  where  the 


1  State  V.  Babb,  76  Mo.  503  (1882) 
State  V.  Burgess,  75  Mo.  541  (1882) 
State  V.  Hartnett,  76  Mo.  251  (1881) 


Bench  in  appeal  for  a  change  of  venue 
on  an  indictment  for  manslaughter 
rejected  on  ground  of  want  of  juris- 


State     V.    McGinniss,     74     Mo.    245     diction. 

(1881)  ;  State  v.  Hughes,  71  Mo.  633  ^  g  Queb.  L.  R.  9  (1881)  ;  s.c.  11 

(1880)  ;  State  v.  Hopper,  21  Mo.  App.     Rev.  Leg.  L.  C.  180. 

510  (1886).     Application  to  Queen's 

259 


260  HOMICIDE.  [chap.  IX. 

question  is  raised.  Where  the  political  authorities  of  a  state 
have  actually  claimed  and  exercised  jurisdiction  over  a  par- 
ticular locality  in  which  a  homicide  has  been  committed,  the 
courts  of  the  state  are  therel^y  concluded,  and  will  respect 
such  decision,  and  act  accordingly,  without  questioning  the 
validity  of  such  claim.^  Where  a  question  is  raised  as  to 
whether  the  precise  locality  in  which  a  homicide,  alleged 
to  have  been  committed,  is  within  the  jurisdiction  of  the 
court,  the  judge  before  whom  the  question  is  raised  may,  in 
addition  to  the  matters  of  which  he  will  take  judicial  notice, 
—  such  as  legislative  enactments,  ancient  charters,  and  geo- 
graphical 23osition, — refresh  his  recollection  and  guide  his 
judgment  by  reference  to  the  records  of  the  courts  in  the 
county  where  he  sits  ;  general  histories,  written  by  deceased 
authors  of  established  reputation;  and  the  records  of  the 
census.'of  the  inhabitants  of  the  county  taken  under  tlie  laws 
of  the  United  States  by  its  officers.^  Whenever  a  homicide 
is  committed  partly  in  and  partly  out  of  the  jurisdiction 
where  the  charge  is  made,  the  power  to  punish  it  depends 
upon  the  question  whether  so  much  of  the  act  as  operates  in 
the  county  or  state  in  Avhich  the  offender  is  indicted  and 
tried,  has  been  declared  to  be  punishable  by  the  law  of  that 
jurisdiction.^  A  statute  providing  a  punishment  for  murder 
or  manslaugliter  in  cases  Avhere  the  wound  was  inflicted  or  the 
poison  administered  at  a  place  out  of  the  state,  but  the  death 
ensues,  and  the  accused  is  brought  to  trial,  within  the  state, 
is  valid.3  Under  such  a  statute  it  has  been  held  that  a 
British  subject  may  be  convicted  of  manslaughter,  although 
the  acts  causing  the  death  were  committed  on  board  a  British 
vessel  on  the  high  seas,  provided  the  injured  person  died 
within  the  state  where  the  accused  is  brought  to  trial ;  and 
no  objection  to  the  jurisdiction  of  state  courts,  in  such  a 
cause,  arises  from  the  fact  that  the   acts  of  violence  were 

1  State  V.  Wagner,  (31  Me.  178  It  has  been  said  that  if  a  person 
(1878).  is  stal)bed  in  Virginia  and  dies  of  his 

2  Commonwealth  v.  Macloon,  101  wounds  in  another  state,  his  assailant 
Mass.  1  (1809)  ;  s.c.  100  Am.  Dec.  81).  cannot  be  tried  for  the  murder  in  an7 

3  Commonwealth  v.  Macloon,  101  county  in  Virginia,  but  he  may  be 
Mass.  1  (1869);  s.c.  100  Am.  Dec.  tried  for  stabbinti  in  the  county  where 
89;  Tyler  v.  People,  8  Mich.  320  the  l)low  was  inflicted.  Commonwealtli 
(I860).  i\  Linton,  2  Va.  Cas.  205  (1820). 


SEC.  227.]  JURISDICTION.  261 

committed  on  the  high  seas.  It  is  sufficient  to  render  the 
perpetrator  amenable  to  theP  justice  of  the  state  for  the  homi- 
cide that  the  person  killed  was,  at  the  time  of  his  death, 
within  the  jurisdiction  and  protection  of  the  state  under 
whose  laws  the  person  who  killed  him  was  indicted.^ 

Sec.  226.  Same  —  At  common  law.  —  At  common  law  it 
was  never  well  settled  whether,  when  the  death  took  place 
in  a  county  other  than  the  one  where  the  injury  was  inflicted, 
the  offence  could  be  prosecuted  in  either  county;  but  the 
weio-ht  of  authority  seems  to  have  favored  the  opinion  that 
the  jurisdiction  attached  only  in  the  county  where  the  blow 
was  inflicted.2  g^t  this  doubt  has  been  resolved  in  some 
states  by  statutory  provision  that  a  homicide  so  committed 
may  be  prosecuted  in  either  county.^  Thus  it  was,  at  an 
early  day,  provided  in  Massachusetts,^  that  where  the  cause 
of  death  happened  in  one  county,  and  the  death  occurred  in 
another,  an  indictment  therefor  might  be  found  in  the  latter ; 
and  this  statute  has  been  held  not  to  be  repugnant  to  the 
declaration  in  the  constitution  that  "  in  criminal  prosecutions 
verification  of  facts  in  the  vicinity  where  they  happen,  is  one 
of  the  greatest  securities  of  the  life,"  &c.,  of  the  citizens.^ 
And  the  same  doctrine  has  been  laid  down  in  Wisconsin^ 
and  elsewhere. 

Sec.  227.  Same—  Of  the  federal  courts.  —  The  jurisdic- 
tion of  the  federal  courts  extends  to  all  homicides  committed 
on  the  high  seas ;  or  in  any  river,  haven,  basin,  or  other  like 
place  out  of  the  jurisdiction  of  particular  states ;  or  in  any 

1  Commonwealth  v.  Maoloon,  101  657'(1849);  East  P.  C.  361;  1  Hale 
Mass.  1  (1869)  ;  s.c.  100  Am.  Dec.  89.  P.  C.  426. 

2  See  Green  v.  State,  06  Ala.  40  ^  gee  Anilier  v.  State,  106  Ind.  426 
(1880)  ;  s.c.  41  Am.  Rep.  744;  People  (1880)  ;  s.c.  7  N.  E.  Rep.  225;  Nash 
r.  Gill,  7  Cal.  356  (1857) ;  Archer  v.  r.  State,  2  G.  Green  (Iowa)  280 
State,  106  Ind.  426  (1886)  ;  s.c.  7  (1849)  ;  Commonwealth  v.  Parker,  19 
N.  E.  Rep.  225;  Commonwealth  \.  Mac-  Mass.  (2  Pick.)  549  (1824);  Dula  v. 
/oo»,  101  Mass.  1  (1869);  s.c.  100  Am.  State,  8  Yerg.  (Tenn.)  511  (1835); 
Dec.  89;  Commonwealth  v.  Parker,  State  c  Pauley,  12  Wis.  537  (1860). 
19  Mass.  (2  Pick.)  550  (1824) ;  Tyler  *  Mass.  Stat.  1795,  c.  45. 

r.  People,  8  Mich.  320  (1860)  ;  State  =  Commonwealth     v.     Parker,     19 

r.  Gessert,  21  Minn.  369  (1875)  ;  Steer-  Mass.  (2  Pick.)  549  (1824). 
man   v.   State,   10   Mo.    503    (1847) ;  ''  State    v.    Pauley,    12    Wis.    537 

Hunter  v.  State,  40  N.  J.  L.   (11  Vr.)  (I860).      See    Archer   v.    State,    106 

495,  547   (1878)  ;  s.c.  1  Cr.  L.    Mag.  Ind.  426   (1886)  ;   s.c.  7    N.    E.    Rep. 

64  ;  Riley  v.  State,  9  Humph.  (Tenn.)  225. 


262  HOMICIDE.  [chap.  IX. 

fort,  magazine,  arsenal,  dockyard,  or  other  place  or  district  of 
county  under  the  sole  and  exclusive  authority  of  the  United 
States .  ^  and  the  death,  as  well  as  the  cause,  must  occur  at 
the  designated  place. ^ 

Under  the  Act  of  Congress  ^  providing  for  the  punishment 
of  murder,  &c.,  committed  upon  the  high  seas,  or  in  a  river, 
haven,  basin,  or  bay  out  of  the  jurisdiction  of  any  state,  it  is 
not  the  offence  committed,  but  the  bay,  &c.,  in  which  it 
is  committed,  which  must  be  out  of  the  jurisdiction  of  the 
state  in  order  to  give  jurisdiction  to  the  courts  of  the  United 
States.  The  fact  that  the  state  could  not  punish  the  offence 
would  make  no  difference,  if  the  place  was  in  its  jurisdiction. 
Thus,  murder  committed  on  board  a  ship  of  war  lying  within 
the  harbor  of  Boston  is  not  cognizable  in  the  circuit  court 
of  the  United  States.'*  The  defendant  is  amenable  to  the 
state  courts  alone.  So  also  the  courts  of  the  United  States 
have  no  jurisdiction  under  the  act  of  April  30,  1790,  over  a 
manslauofhter  committed  on  board  a  United  States  vessel  in 
the  river  of  a  foreign  country.  Such  a  place  is  not  on  the 
high  seas  within  the  meaning  of  that  section.^  And  man- 
slaughter, committed  by  a  moi'tal  blow  given  on  the  River 
St.  Clair,  beyond  the  boundary  line  between  the  United 
States  and  the  province  of  Canada,  and  within  a  county  in 
said  province,  from  which  blow  death  ensued  upon  land,  is 
not  within  the  Crimes'  Act  of  Congress  of  March  3,  1857, 
and  the  circuit  court  of  the  United  States  has  no  jurisdiction 
of  the  same.^ 

The  United  States  circuit  court  has  jurisdiction  of  a  homi- 

1  Const,  of  U.  S.,  art.  1,  §  8.    See  r.   Peters,  53    Mass.   (12   Mete.)    .380 

United  States   v.  Holmes,  18  U.  S.  (5  (1847)  ;  Tyler  v.  People,  8  Mich.  320 

Wheat.)  412  (1820)  ;  bk.  5  L.  ed.  122 ;  (I860). 

United  States  v.  Pirates,  18  U.  S.  (5  2  United  States  v.  McGill,  4  U.  S. 

AVheat.)  184  (1820)  ;  bk.  5  L.  ed.  64  ;  (4  Dall.)  426  (1806)  ;  bk.  1  L.  ed.  894. 
United  States  v.  Wiltberger,  18  U.  S.  3  Act  1790,  §  8.     See    U.  S.  Rev. 

(5  Wheat.)  76  (1820)  ;  bk.  5  L.  ed.  37  ;  St.  §  5339. 

United    States    v.   Bevans,    16   U.   S.  *  United  States  v.  Bevans,  16  U.  S. 

(3  Wheat.)  3-36  (1818)  ;  bk.  4  L.  ed.  (3  Wlieat.)  336  (1818)  ;  bk.  4  L.  ed, 

404 ;  United  States  v.  McGill,  4  U.  S.  404. 

(4  Dall.)  426  (1806),  bk.  1  L.  ed.  894.  5  United   States    »-.  Wiltberger,  18 

United  States  r.  Grush,  5  Mason  C.C.  U.  S.    (5  Wheat.)   76   (1820);  bk.  5 

290  (1829)  :  United  States  v.   Clark,  L.  ed.  37. 

31  Fed.  Rep.  710  (1887;^ ;  s.o.  10  Cr.  '>  See  Tyler  v.  People,  8  Mich.  320 

L.  Mag.  59.     See  also  Commonwealth  (1860). 


SEC.  229.]  JURISDICTION.  263 

cide  committed  by  one  soldier  upon  another  within  a  military 
reservation  of  the  United  ^tates.^ 

Sec.  228,  Offences  commenced  in  one  jurisdiction  and 
completed  in  another.  —  When  any  offence  against  the 
United  States  is  begun  in  any  one  judicial  circuit  and  com- 
pleted in  another,  it  shall  be  deemed  to  liave  been  committed 
in  either,  and  may  be  dealt  with,  inquired  of,  tried,  deter- 
mined, and  punished  in  either  district,  in  the  same  manner  as 
if  it  had  been  actually  and  wholly  committed  therein.^ 

Sec.  229.  Jurisdiction  as  to  the  person.  —  A  citizen  of  a 
foreign  state  or  countr}-  who  is  charged  with  the  commission 
of  a  homicide  is  within  the,  jurisdiction  of  the  court,  and  may 
be  tried  and  punished  in  the  same  manner  as  a  citizen  of  the 
state  where  the  offence  is  committed.  Thus  it  has  been  held 
by  the  New  York  courts  that  a  homicide  committed  within 
the  territory  of  the  United  States  by  a  subject  of  Great 
Britain,  in  time  of  peace,  ma}^  be  prosecuted  in  our  courts  as 
murder,  though  avowed  to  be  under  the  direction  of  the  local 
authorities  of  Great  Britain.^  But  the  soundness  of  this 
decision  has  been  called  in  question  and  may  be  seriously 
doubted.  Certain  it  is  that  Great  Britain  never  acquiesced 
in  this  doctrine ;  and  it  is  not  questioned  but  that  a  convic- 
tion of  McLeod  at  the  trial  on  the  indictment  would  hav3 
been  followed  by  a  declaration  of  war  by  Great  Britain 
against  the  United  States.* 

1  Uniteii  States  v.  Clark,  31  Fed.  dian  authorities  to  Navy  Island  to  de- 
Rep.  710  (1887)  ;  s.c.  10  Cr.  L.  Mag.  stroy  the  "Caroline."  But  not  finding 
69.  her  there,  they  proceeded  to  Schlosser, 

^  U.  S.  Rev.  Stat.  (2d  ed.)  p.  139,  where   they  found   her   at  the  dock; 

§  731.  and  after  a  brief  conflict,  in  which  an 

3  People  V.  McLeod,  1  Hill  (N.  Y.)  American,  named  Durfee,  was  killed, 

377  (1841)  ;  s.c.  37  Am.  Dec.  328.  the  steamer  was  captured,  set  on  fire, 

*  The  facts  in  this  celebrated  case  and  conducted  out  into   the   stream, 

are  as  follows :  A  company  of  about  Avhere  she  was  left  to  drift  down  the 

seven  hundred  Canadians  and  Ameri-  Falls   of   Niagara.     McLeod    was   in- 

cans  had  seized  Navy  Island  (which  dieted  for  murder  in  Niagara  county, 

belonged  to  Great  Britain),  and  had  but  the  venue  was  changed  from  that 

employed    the    "Caroline"   for    the  county  to  the  county  of  Oneida;  and 

transportation  of  men,  provisions,  and  the   cause    was    tried    at   the    Oneida 

ammunition  from  the  town  of  Schlos-  Court  of    Oyer  and  Terminer  in  the 

ser   on    the   American    shore    to   the  month      of     November,     1841,     and 

island.     Near  the   close  of   the   year  McLeod  was  acquitted.    See,  foradis- 

1837,  on  a  very  dark  night,  a  body  of  cussion  of  this  case,  27  Alb.  L.  J.  27; 

British  troops  was  sent  by  the  Cana-  37  Am.  Dec.  363 ;  26  Wend.  (N.  Y.) 


264  HOMICIDE.  [chap.  IX. 

It  is  said  in  Hunt  v.  State  ^  that  an  Indian,  a  member  of 
the  "United  States  tribes,"  who  commits  a  homicide  not 
shown  by  the  record  to  be  within  any  Indian  reserve,  is  not 
exempt  from  prosecution  therefor  in  the  state  courts. 

Sec.  230.  Jurisdiction  as  to  court.  —  All  homicides  are 
usually  triable  by  the  same  courts  and  in  the  same  manner  as 
are  other  felonies.  Thus  in  New  York  a  court  of  oyer  and 
terminer  has  jurisdiction  to  try  all  cases  of  murder  committed 
within  the  county ;  and  a  murder  committed  by  a  soldier  in 
the  militar}^  services  of  the  United  States  in  time  of  war,  in- 
surrection, or  rebellion,  forms  no  exception.^  But  the  courts 
of  sessions  in  that  state  have  no  power  to  arraign  a  defendant 
and  receive  a  plea  to  an  indictment  for  murder.^ 

Under  the  new  judicial  system  of  Ohio  original  jurisdiction 
has  not  been  given  the  district  court  to  try  cases  of  murder ; 
it  has  that  jurisdiction  only  in  such  cases  as  are  pending  in 
the  old  supreme  court.'*  A  prisoner  under  indictment  in  that 
state  for  murder  in  the  first  degree,  has  no  right,  under  the 
new  constitution,  to  elect  to  be  tried  in  the  district  court, 
that  court  having  no  jurisdiction  of  capital  offences.^ 

663;    3    Hill    (N.  Y.)    635;    26    Am.  2  People  v.  Gardiner,   6   Park   Cr. 

L.  J.  236,  241 ;  1  Am.  L.  Mag.  348 ;  4  Cas.  (N.  Y.)  143  (1865). 

Law.  Rep.  169 ;  Lawrence's  Wheaton  ^  pp^pig   ^     McCraney,    21     How. 

1S9, etseq.;   Webster's  Works,  vol.  H.,  (N.  Y.)  Pr.  149  (1861). 

pp.  119, 120 ;  vol.  v.,  pp.  116,  120, 125,  *  Bobbins  v.  State,  8  Ohio  St.  131 

133;  vol.  VL,  pp.  254,  266;  Neilson's  (1857);  Parks    v.  State,   3    Ohio    St. 

Life  of  Rufus  Choate,  chap,  x.,  p.  173.  101  (1853). 

1  4  Kan.  60  (1866).  &  Robbins  v.  State,  8  Ohio  St.  131 

(1857). 


CHAPTER  X. 

PRELIMTNAKY   EXAMINATION. 

Sec.  231.  Right  to  preliminary  examination. 

Sec.  232.  By  whom  preliminary  examination  held. 

Sec.  233.  Securing  attendance  and  examining  witnesses. 

Sec.  234.  Effect  of  finding  indictment  on  riglit  to  examination. 

Sec.  235.  Where  preliminary  examination  to  be  lield. 

Sec.  236.  Same —  Adjournment  of  examination. 

Sec.  237.  Same  —  Keducing  testimony  to  writing. 

Sec.  238.  Waiver  of  preliminary  examination. 

Sec.  239.  Warrant  of  commitment. 

Sec.  231.  Right  to  preliminary  examination. — No  per- 
son may  be  imprisoned  upon  a  charge  of  felonious  homicide 
except  upon  tlie  warrant  of  a  judicial  officer,  and  after  a 
judicial  inquiry  as  to  his  probable  guilt.  Therefore,  when  a 
person  is  apprehended  before  an  indictment  is  found  against 
him,  he  is  entitled  to  an  immediate  examination  of  the  charge 
before  a  magistrate,  whose  duty  it  is  to  commit  him  to  await 
the  action  of  the  grand  jury,  if  there  appear  to  be  reason- 
able grounds  for  a  belief  of  his  guilt,  and  if  not,  to  immedi- 
ately release  him.^ 

It  is  thought  that  the  riglit  to  a  preliminary  examination 
before  a  committing  magistrate,  or  other  officer,  is  one  of 
which  the  defendant  in  a  homicide  case  cannot  be  deprived,^ 

1  See  People  v.  McCurdy,  68  Cal.  In   Virginia   an    examining    court 

576  (1886);  s.c.   10    Pac.    Rep.    207;  has   no    power    to    acquit    a    person, 

People  V.  Mellor,  2  Colo.  705  (1875)  ;  charged  before  them  with  murder,  of 

Murphy  v.  Commonwealth,  11    Bush  the  murder  with  wliich  lie  so  stands 

(Ky.)  217  (1875);  Commonwealth  v.  charged,  and    to   remand  him    to    be 

McNeill,    36    Mass.    (19    Pick.)    127  tried  for  manslaughter  only  ;  and,  if  it 

(1837)  ;  Commonwealth   v.  Linton,  2  makes  such  discrimination,  the  pris- 

Va.  Cas.  205  (1820);  Bailey's    Case,  oner  isnot  thereby  discharged, but  may 

1    Va.    Cas.    2.58    (1798);    Common-  be  indicted  for  murder  in  the  superior 

wealth   V.    Myers,    1    Va.     Cas.     188  court.      Commonwealth  ;-.    Myers,    1 

(1811)  ;  Ex  parte  v.  Bollman,  8  U.  S.  Va.  Cas.  188  (1811).     See   also,  Sor- 

(4  Cr.)  75,  129  (1807)  ;  bk.  2   L.  ed.  rell's    Case,    1  Va.  Cas.    253    (1786)  ; 

554;  United  States   v.  Hand,  6  McL.  Bailey's  Case,  1  Va.  Cas.  258  (1798). 

C.  C.  274  (1854).  ^  gge  Kapalje's  Crim.  Proc.  §  16. 

265 


266  HOMICIDE.  [chap.  X. 

and  also  that  a  defendant  cannot  be  prosecuted  by  informa- 
tion until  after  examination  and  commitment  by  a  magistrate  ; 
but  it  does  not  follow  that  an  information  will  be  set  aside 
for  mere  irregularities  in  the  examination  or  commitment.^ 

In  some  jurisdictions,  where  a  man  is  examined  by  the 
examining  court  for  feloniously  stabbing  another,  and  re- 
manded for  trial  for  that  offence,  and  the  party  stabbed  after- 
wards dies,  the  accused  cannot  be  indicted  for  murder, 
without  an  examination  for  the  murder.^ 

Sec.  232.  By  whom  preliminary  examination  held. — 
Preliminary  examinations  are  usually  conducted  by  justices 
of  the  peace,^  or  persons  having  the  same  general  jurisdiction, 
such  as  mayors  or  police  justices  in  cities,'*  and  United  States 
commissioners  in  case  the  homicide  falls  within  the  jurisdic- 
tion of  the  federal  courts.^  A  coroner's  inquest  is  in  the 
nature  of  a  preliminary  examination,  and  that  officer  has 
power  to  commit  persons  of  whose  guilt  the  evidence  adduced 
before  him  gives  cause  for  reasonable  belief  in  their  guilt.'' 

The  only  duty  or  power  of  the  examining  magistrate  or 
other  officer  in  the  performance  of  his  office,  is  to  determine 
whether  it  is  a  case  on  which  the  accused  ought  to  be  held 
for  trial  ;^  and  the  onjy  issue  to  be  tried  is  whether  there  is  a 
prima  facie  case  made  out.^  If  the  accused  admits  that  he 
committed  the  homicide,  this  is  sufficient,  without  proof  of 
the  corpus  delicti,  to  warrant  his  being  held  for  trial.^ 

Sec.  233.  Securing  attendance  and  examining  witnesses. 

—  In  order  to  secure  the  testimony  of  witnesses  to  the  fact, 

1  People  V.  McCurdy,  G8  Cal.  576  Worms,  4  Blatchf.  C  C  332  (1859); 
(1886) ;  s.c.  10  Pac.  Rep.  207.  United    States   v.  Bloonigart,  2    Ben. 

2  Comnionwealtli   v.   Linton,  2  Va.     C.  C.  356  (1868). 

Cas.  205  (1820).  ^  Bass  v.  State,  29  Ark.  142  (1874); 

3  Murphy  v.  Commonwealth,  11  People  v.  Budge,  4  Park.  Cr.  Cas. 
Bush  (Ky.)  217  (1875) ;_  Common-  (N.  Y.)  519  (1860)  ;  Wormeley  v. 
wealthr.  McNeill,  36  Mass.  (19  Pick.)  State,  10  Gratt.  (Va.)  658  (1853); 
127  (1837).  Reg.  v.  Taylor,  9  Car.  &  P.  672  (1840); 

*  See  Santo  v.   State,  2  Iowa,  165  s.c.  38  Eng.  C.  L.  391. 
(1855);  s.c.  63  Am.  Dec.  487;    Com-  ^  United    States    v.   Bloomgart,   2 

monwealth  !'.  Leight,  1  B.  Mon.  (Ky.)  Ben.    C.    C    356    (1868)  ;  s.c.    7    Int. 

107  (1840)  ;   Holmes  v.  State,  44  Tex.  Rev.  Rec.  148. 
631  (1876).  ^  See    Queen   v.   Garden,  49  L.  J. 

5  See  United   States  v.  Southmayd,  M.  C.  1  (1870). 
6  Biss.  C.  C.  321  (1875)  ;  s.c.  1  N.  Y.  «  See  United  States  v.  Bloomgart, 

Week.   Dig.   155 ;  United    States   v.  2  Ben.  C.  C.  356  (1868). 


SEC.  236.]  PRELIMINARY   EXAMINATION.  267 

the  magistrate  making  the  preliminary  examination  may- 
issue  summons  or  warrants  and  secure  their  attendance  in 
the  same  manner  that  the  presence  of  the  accused  is  secured.^ 
Witnesses  for  the  accused  are  not  generally  examined,^  but  it 
is  thought  that  persons  present  at  the  homicide  may  properly 
be  examined  to  explain  what  is  said  by  the  witnesses  for  the 
j)rosecution.2  The  examining  magistrate  cannot  issue  pro- 
cess into  another  state  to  summon  witnesses  for  the  accused.^ 

Sec.  234.  Effect  of  finding-  indictment  on  rig-ht  to  exam- 
ination.—  If  there  is  no  probable  ground  of  guilt,  the  prisoner 
is  to  be  discharged ;  ^  but  the  charge  cannot  be  dismissed 
pending  an  examination,*  nor  can  the  defendant  be  deprived 
of  the  right  to  a  preliminary  examination  by  the  finding  of 
an  indictment  against  him  during  the  pendency  of  the  exam- 
ination ;  ^  and  the  finding  of  an  inquisition  by  a  coroner's  jury 
will  not  deprive  the  accused  of  a  right  to  a  preliminary  hear- 
ing, whether  he  was  arrested  before  or  after  the  filing  of  the 
inquisition.'' 

Sec.  235.    Where  preliminary  examination  to  be  held. 

—  A  person  arrested  on  a  charge  of  homicide  is  entitled  to  a 
speedy  examination,  within  twenty-four  hours  from  the  time 
of  his  preliminary  commitment,  except  in  those  cases  where 
special  and  sufticient  cause  is  shown  for  longer  delay,  or  such 
delay  is  at  the  prisoner's  own  request.'^  Where  cause  is  shown 
on  the  part  of  the  government  for  further  delay  to  procure 
testimony,  great  diligence  should  be  required  in  its  procure- 
ment, and,  in  case  of  neglect,  the  prisoner  should  be  dis- 
charged.'^ 

Sec.  236.    Same  —  Adjournment     of     exan»ination.  — 

Where  a  person  is  arrested  on  a  charge  of  homicide  and 
brought  before  a  magistrate  for  preliminary  examination,  the 
latter  has  a  reasonable  time  within  which  to  inquire  into  the 

1  4  Am.   &  Eng.   Ency.  of   L.  tit.  ^  ggg  People  v.  Drury,  2  Edm.  Sel. 

"Criminal  Procedure,"  p.  731.  Cas.  (N.  Y.)  351  (1851). 

■^  See    United    States    v.    Wliite,  2          ^  In  re  Kamscar,  1  N.  Y.  Cr.  Rep. 

Wash.  C.  C.  29  (1807).  .33  (1882). 

3  Rapalje's  Crim.  Proc.  §  16.  "  See   United    States  v.  Worms,  4 

4  United    States    v.    Schumann,  7     Blatchf.  C.  C.  332  (1859). 
Sawy.  C.  C.  439  (1860). 


268  HOMICIDE.  [chap.  X. 

matter  and  make  his  final  decision ;  ^  and  where  the  examina- 
tion cannot  be  completed  at  a  single  hearing,  the  accused 
may  be  remanded  from  time  to  time.^ 

Sec.  237.    Same  —  Keducingr    testimony    to    writing. — 

Where  the  statute  requires  that  the  evidence  taken  at  the 
preliminary  examination  shall  be  reduced  to  writing  and 
signed  by  the  witnesses,  if  it  appears  that  the  accused  never 
had  a  preliminarj^  examination,  or  waived  such  examination, 
and  the  witnesses  claimed  to  have  been  examined  did  not 
sign  the  evidence  claimed  to  have  been  given,  it  will  be  error 
to  overrule  the  accused's  motion  to  quash,  and  compel  him 
to  plead  to  the  indictment  or  information,  and  go  to  trial 
thereon.3 

But  in  cases  where  the  preliminary  examination  before  the 
committing  magistrate  is  in  other  respects  regular  and  con- 
forms to  the  other  express  terms  of  the  statute,  the  fact  that 
the  evidence  is  not  read  to  or  by  the  witness  before  signing 
caimot  affect  the  status  of  the  defendant  in  the  trial  court, 
to  which  he  is  bound  over  at  such  examination.  There  is  no 
question  of  the  right  of  the  accused  under  such  a  statute  to 
require  at  the  examination  that  the  testimony  shall  be  read 
before  it  is  signed;  but  where  no  objection  is  then  made 
because  of  such  omission,  the  accused  cannot  afterwards  be 
heard  to  complain  of  it.* 

Sec.  238.     Waiver    of    preliminary    examination,  —  In 

California  one  accused  of  homicide  or  other  felony  cannot 
waive  a  preliminary  examination,-^  but  it  is  thought  that  in 
all  other  states  the  accused  may  either  insist  upon  or  waive 
a  preliminary  examination.  After  waiving  the  preliminary 
examination  the  accused  will  not  be  heard  to  complain  that 
none  was  heard.^ 

In   case    of   a   waiver  of   a   preliminary   examination  the 

1  This  matter  is  regulated  by  stat-  People  v.  Brock,  04  Mich.  691  (1887); 
ute  in  most  if  not  all  the  state*.  s.c.  31  N.  W.  Rep.  585. 

2  See  Hamilton  ;'.  People,  20  Mich.  «  See  People  v.  Gleason,  63  Mich. 
176    (1874)  ;    Pardee    v.    Smith,    27  626  (1886)  ;  s.c.  30  N.  W.  Rep.  210. 
Mich.   43    (1873).      In   most   of    the  ^  See  Kallock    v.  Superior   Court, 
states  the  length  of  time  of    the  ad-  50  Cal.  229  (1880). 

journment  is  regulated  by  statute.  ^  See   State  v.  Cobb,  71    Me.   198 

3  People  I'.  Gleason.  03  Mich.  026     (1880). 
(1880);    s.c.   30    N.   W.    Rep.   210; 


SEC.  239.]  PRELIMINARY   EXAMINATION.  269 

magistrate,  or  other  proper  ofificer  before  whom  the  accused 
is  brought,  may  bind  him  over  to  await  the  action  of  the 
grand  jury  on  the  showing  made  by  and  for  the  grade  of 
homicide  charged  in  the  comphiint  and  warrant,  and  the  prose- 
cuting officer  can  file  an  information  or  procure  an  incUctment 
charging  him  with  any  grade  of  homicide  covered  by  the 
warrant  and  sustained  by  the  evidence  on  which  it  is  issued.^ 
Where  the  accused  wishes  the  committing  maoistrate  to 
specially  designate  the  degree  of  homicide,  below  the  highest, 
it  is  thought  that  a  preliminary  examination  cannot  be  waived.^ 

Sec.  239.  Warrant  of  coiiiinitiueiit.  —  The  warrant  of 
commitment,  to  be  valid,  must  in  all  respects  comply  with 
the  terms  of  the  statute  under  which  it  is  issued.  Thus  a 
warrant  of  commitment  issued  by  a  magistrate  under  the 
Ashburton  treaty  and  the  Canadian  statute  which  uses  the 
words  "  did  wilfully,  maliciously,  and  feloniously  stab  and 
kill,"  and  omitted  the  words  "  murder"  and  "  with  malice 
aforethought,"  and  concluded  by  instructing  the  jailer  to 
"  there  safely  keep  him,  the  prisoner,  until  he  shall  be  thence 
delivered  by  due  course  of  law,"  does  not  come  within  the 
provisions  of  the  treaty  or  statute,  and  is  consequently  defec- 
tive.-^ 

1  Stuart  I'.  People,  42  Mich.  255  488  (1880)  ;  s.c.  7  N.  W.  Rep.  71  ; 
(1879)  ;  s.c.  3  N.  W.  Rep.  863.  Stuart  v.  People,  42  Mich.  255  (1879). 

2  See  People   v.   Dowd,   44   Mich.  ^  In    re    Anderson,    11    Up.    Can. 

C.  P.  9. 


CHAPTER   XI. 

INDICTMENT   AND   INFORMATION. 

Sec.  240.  Necessity  for. 

Sec.  241.  Essentials  of. 

Sec.  242.  Matters  pertaining  to  the  finding  of  tlie  indictment. 

Sec.  243.  Tlie  caption. 

Sec.  244.  Ciiarging  of  tlie  offence  —  General  rules. 

Sec.  245.  Same  —  Charging  in  two  counts  —  Election. 

Sec.  246.  Same  —  As  at  common  law. 

Sec.  247.  Same  —  In  the  language  of  the  statute. 

Sec.  248.  Same  —  Averment  that  the  act  was  unlawful. 

Sec.  249.  Same  —  In  abortion. 

Sec.  250.  Same  —  Intent  —  Simple  averment  of  intent  to  kill. 

Sec.  251.  Same — Wilfully,  feloniously,  and  with  malice  aforethought. 

Sec.  252.  Same  —  Premeditation  and  deliberation. 

Sec.  253.  Same  —  Specifying  the  degree. 

Sec.  254.  Same — Charging  killing  while  committing  another  offence. 

Sec.  255.  Same  —  Means    and   manner  of   the    homicide  —  Averment   that 

injury  charged  caused  the  death. 

Sec.  256.  Same  —  Averment  of  instrument  or  means  used. 

Sec.  257.  Same  —  Alleging  weapon  in  defendant's  hands. 

Sec.  258.  Same — Charging  killing  with  gun  or  pistol. 

Sec.  259.  Same  —  Charging  killing  with  bludgeon  or  stick. 

Sec.  260.  Same  —  Charging  killing  by  strangulation. 

Sec.  261.  Same  —  Charging  killing  by  poisoning  —  Quantity  used. 

Sec.  262.  Same — Description  of  wound. 

Sec.  263.  Time  of  act  causing  death. 

Sec.  264.  Time  of  the  death. 

Sec.  265.  Averment  of  death. 

Sec.  266.  Averring  place  of  the  act  causing  death. 

Sec.  267.  Same  —  Under  federal  statutes. 

Sec.  268.  Averring  place  of  the  death. 

Sec.  269.  Description   of   deceased  —  Setting   out   Christian   name — Idem 

sonans. 

Sec.  270.  Averring  defendant's  sanity. 

Sec.  271.  Conclusion  of  indictment. 

Sec.  272.  Charging  more  than  one  homicide  by  the  same  act. 

Sec.  273.  Joinder  of  counts  —  Different  modes  of  committing  one  offence. 

Sec.  274.  Same  —  Different  offences. 

270 


SEC.  241.]  INDICTMENT   AND   INFORMATION.  271 

Sec.  275.  Same  —  rrincipjils  and  accessories. 

Skc.  270.  Indictment  of  accessories  and  co-conspirators. 

Skc.  277.  Joint  indictment. 

Sec.  278.  Signature  and  indorsement  of  the  indictment. 

Sec.  240.  Necessity  for.  —  All  persons  accused  of  homi- 
cide must  be  put  on  trial  on  some  regular  and  established  form 
of  accusation.  The  Federal  Constitution  provides^  that  "no 
person  shall  be  held  to  answer  for  a  capital  or  otherwise  in- 
famous crime  unless  on  a  presentment  or  indictment  of  a 
grand  jury "  ;  but  it  is  thought  that  prosecutions  for  homi- 
cides not  punishable  capitally  may  be  authorized  by  statute  to 
be  by  indictment  or  information  in  the  discretion  of  the  prose- 
cuting officer,^  because  a  state  is  not  forbidden  by  the  United 
States  Constitution,  or  the  amendments  thereto,  from  prose- 
cuting offences  by  information ;  ^  but  all  prosecutions  for 
homicide  must  be  either  by  indictment  or  information.* 

Prosecutions  by  information  being  in  derogation  of  the 
common  law  and  a  departui-e  from  the  general  policy  of 
the  law,  and  statutes  providing  for  it  being  in  opposition  to 
the  long-settled  policy  of  the  law,  must  be  strictly  construed.^ 

Sec.  241.  Essentials  of.  —  To  be  valid  an  indictment  must 
be  presentet\  to  some  court  having  jurisdiction  of  the  homi- 
cide charged  therein ;  it  must  appear  to  have  been  found  by 
a  grand  jury  of  the  proper  county  or  district ;  that  the  indict- 
ment was  found  to  be  a'  true  bill,  and  must  be  signed  by  the 
foreman  of  the  grand  jury.  The  indictment  must  charge  the 
time  and  place  and  circunjstances  of  the  homicide  with  clear- 
ness and  certainty,  so  that  the  party  accused  may  have  full 
notice  of  the  charge  and  be  able  to  make  his  defence  with  all 
reasonable  knowledge  and  ability.^     It  must  also  contain  the 

1  Amendt.  art.  5,  §  1.  An.    364    (1859)  ;     United     States    v. 

2  See  State  v.  Cole,  38  La.  An.  843  Howard,  17  Fed.  Rep.  038  (1883). 
(1880).  ^  State    v.   Boswell,    104    Ind.    545 

3  Shular    v.    State,    105    Ind.    289  (1885)  ;  s.c.  4  N.  E.  Hep.  675. 
(1885);  s.c.  4  N.  E.  Rep.  870;  State  ^  Commonwealth  v.  Buyer,  1   Binn. 
V.  Boswell,  104  Ind.  541   (1885)  ;  .s.c.  (Pa.)  201  (1807)  ;    Spangler  v.  Com- 
4  N.  E.  Rep.  675.  monwealth,  3  Binn.  (Pa.)  533  (1811)  ; 

■^  Shular    v.    State,    105    Ind.   289  Randolph  v.  Commonwealth,  0    Serg. 

(1885);  s.c.  4  N.E.  Rep.  870;  State  !\  &   R.   (Pa.)  398    (1821);    Stewart    v. 

Boswell,  104  Ind.  541    (1885)  ;  s.c.  4  Commnnwealtli,  4    Serg.  &    R.   (Pa.) 

N.  E.  Rep.  675;    State  v.  Ross,  14  La.  194  (1818)  ;  United  States  v.  Cantril, 


272  HOMICIDE.  [chap.  XI. 

title  of  the  prosecution,  the  name  of  the  court  in  which  it  is  pre- 
sented, names  of  parties,  a  statement  in  ordinary,  concise,  and 
generally  intelligible  language  of  the  acts  constituting  the  of- 
fence ;  and  must  be  direct  and  certain  as  to  the  party  and  offence 
charged,  the  county  of  its  commission,  and  the  circumstances, 
if  they  are  necessary  to  constitute  a  complete  offence.^ 

Sec.  242.  Matters  pertaining  to  the  finding^  of  the 
indictment.  —  The  rules  which  govern  the  finding  and 
presenting  of  an  indictment  for  any  grade  of  homicide  are 
the  same  that  apply  to  that  part  of  the  prosecution  for  all 
other  felonies.  This  applies  to  the  qualifications  of  grand 
jurors,  as  well  as  to  the  procedure  itself;  and,  therefore, 
kinship  between  a  grand  juror  and  a  person  charged  with 
murder  will  not  vitiate  the  indictment.'^  The  full  number  of 
grand  jurors  prescribed  by  law  must  be  drawn,^  and  the  jury 
must  be  regularly  impanelled,  unless  the  accused  be  in  cus- 
tody awaiting  its  action."^ 

It  is  sometimes  allowable  for  a  person  in  custody  on  a 
charge  of  homicide,  to  exercise  the  right  of  challenge  in  the 
impanelling  of  a  grand  jury ;  but  a  failure  to  allow  him  this 
opportunity  is  no  ground  for  setting  aside  the  indictment. 
Tlius  it  is  held  by  the  supreme  court  of  Minnesota  in  the 
case  of  State  v.  Hoyt,^  that  the  fact  that  the  accused  had  no 
opportunity  to  interpose  a  challenge  to  any  grand  juror  or  to 
the  panel,  is  not  a  ground  for  setting,  aside  an  indictment  for 

8  U.  S.  (4  Cr.)  1G7  (1807);  bk.  2  L.  ed.  are    drawn    to   serve    at    the   term  in 

584  ;  2  Hale   P.  C.  167  ;   4  BI.  Comm.  wliicli    an   indictment   for   murder   is 

301  ;  Story  Const.  (4th  ed.)  §  1785.  found,  the  indictment  is  fatally  defec- 

1  Jane    ;;.    Commonwealtii,   3    Met.  tive.      Gladden  v.  State,  12  Fla.  562 

(Ky.)  18  (1800).  (1869). 

'■^  Thus  in  Ohio  it  is  not  a  good  plea  •*  It  has  been  held  in  California 
to  an  indictment  for  murder  that  a  tliat  there  is  no  error  in  the  special 
member  of  the  grand  jury,  wiiich  order  of  a  court  impanelling  the  grand 
found  such  indictment,  was  a  nephew  jury,  after  the  offence  had  been 
of  the  person  who  was  murdered.  The  cliarged  against  the  prisoner,  and 
nephew  not  being  "  exempt  from  wlien  he  was  in  custody.  People  r. 
serving  as  juror,"  within  the  Ohio  Moice,  15  Cal.  329  (1860)  ;  People  v. 
statute,  prescribing  qualifications  of  Cuintano,  15  Cal.  327  (1860).  And 
grand  jurors.  If  kinship  were  a  dis-  it  is  of  no  consequence  that  such 
qualification,  the  grand  jury  might  order  was  not  regularly  served  on  the 
have  to  be  changed  for  each  case,  sheriff,  or  that  he  summoned  by- 
State  V.  Easter,  30  Oliio  St.  542  (1876).  standers.    People  v.  Moice,  15  Cal.  329 

3  Thus  it  has  been  held  in  Florida  (18(50). 

that  when  only  fourteen  grand  jurors  ""  13  Minn.  132  (1868). 


SEC.  242.]  INDICTMENT    AND    INFOR^MATION.  273 

homicide, — especially  if  the  record  shows  that  liis  counsel 
was  in  court  at  the  time  the  grand  jury  were  sworn,  and  then 
made  no  objection. 

Tlie  grand  jury,  after  its  organization,  is  governed  in  its 
proceedings  by  common  law  rules,  and  an  indictment  is  not 
vitiated  by  the  improper  discharge  of  a  juror  if  tlie  number 
necessary  to  find  an  indictment  remains.^  Thus  where-  three 
out  of  a  grand  jury  of  sixteen  were  challenged  by  the  de- 
fendant and  excused,  and  the  remaining  thirteen  found  an 
indictment  for  murder,  it  was  held  good.^ 

It  is  sometimes  provided  that  a  charge  once  dismissed  by  a 
grand  jur}^  cannot  subsequently  be  made  the  foundation  for 
an  indictment  without  leave  of  court ;  but  this  rule  cannot 
l)e  applied  where  the  former  charge  dismissed  was  for  an 
offence  of  a  different  character,  although  growing  out  of  the 
same  act.^ 

Witnesses  who  are  not  competent  to  testify  against  the  de- 
fendant upon  the  trial,  should  not  be  allowed  to  testify  before 
the  grand  jury  to  facts  relating  to  the  same  offence  ;  but  where 
they  are  erroneously  allowed  so  to  testify,  an  objection  to  the 
indictment  on  that  account  is  too  late  when  made  for  the  first 
time  after  trial.  Thus  in  State  v.  Houston^  the  supreme 
court  of  Iowa  held  that  on  the  trial  of  an  indictment  for 
murder,  an  objection  that  the  defendant's  wife  testified 
against  him  before  the  grand  jury,  comes  too  late  when  raised 
in  the  first  instance  after  conviction. 

No  person  other  than  the  grand  jurors,  except  the  prosecut- 
ing officer,  should  be  allowed  in  the  grand  jury  room  during 
the  consideration  of  the  charge ;  but  where  another  person  is 
present,  the  setting  aside  of  the  indictment  on  that  account 
will  be  a  matter  largely  within  the  discretion  of  the  court, 
looking  to  the  capacity  in  which  such  person  was  wrongfully 
present,  as  well  as  to  the  other  circumstances  of  the  indict- 
ment. In  the  case  of  People  v.  Lee,'^  the  defendant,  under 
an  indictment  for  murder,  asked  leave  to  withdraw  his  plea 
of  not  guilty,  for  the  purpose  of  moving   to  set  aside   the 

1  Gladden   v.    State,    l'.i    Fla.  562  «  See  People  v.  Warren,  100  N.  Y. 

(1869).  01.5  (1888)  ;  s.c.  15  N.  E.  Rep.  880. 

-  People  V.  Gatewood,  20  Cal.  147  ■*  50  Iowa,  512  (187!»). 

(1862).  5  17  Cal.  70  (1860). 


274 


HOMICIDE. 


[chap.  XI. 


indictment,  on  the  ground  that  one  S.  was  present  in  the 
grand  jury  room  while  the  charge  was  in  consideration.  S. 
was  at  the  time  assistant  district  attorney,  though  not  dis- 
closed as  such  by  the  record.  The  leave  was  refused,  and  on 
appeal  it  was  held  that  the  granting  of  leave  was  within  the 
discretion  of  the  trial  court,  and  that  the  circumstances  did 
not  show  that  a  refusal  to  grant  it  was  an  abuse  of  this  dis- 
cretion. 

Sec.  243.  The  caption.  —  The  caption  of  an  indictment  is 
the  first  part  of  its  body,  and  its  purpose  is  to  show  the 
authority  by  which  the  charge  is  presented  and  the  jurisdic- 
tion of  the  court  to  entertain  it ;  ^  its  general  form  must  vary 
according  to  the  jurisdiction  of  the  court.^  The  caption 
forms  no  part  of  an  indictment  and  is  not  essential  to  its 
validity ;  ^  and,  consequently,  the  appearance  of  an  unneces- 
sary written  caption  will  not  invalidate  the  indictment.^  It 
is  held  in  New  York  that  the  clerk  may  affix  the  caption  at 
any  time  with  a  view  to  perfecting  the  record.^  But  it  is 
essential  that  it  should  appear  from  the  indictment  as  returned 


1  Noles  r.  State,  24  Ala.  672  (1854); 
Thomas  i:  State,  G  Miss.  (5  How.)  20, 
31  (1840);  State  v.  Gary,  S6  N.  H. 
359  (1858)  ;  People  v.  'Bennett,  37 
N.  Y.  117  (1867)  ;  s.c.  93  Am.  Dee. 
551 ;  State  v.  Sutton,  1  Murph.  (X.  C.) 
281  (1809);  State  v.  Williams,  2 
McC.  (S.  C.)  383  (1823). 

-  See  Goodloe  v.  State,  60  Ala.  93 
(1877);  Reeves  v.  State,  20  Ala.  33, 
36  (1852);  Bass  v.  State,  17  Fla.  685 
(1880);  Mills  v.  State,  52  Ind.  187 
(1875);  Lovellf.  State,  45  Iiul.  550 
(1874)  ;  State  v.  Jackson,  73  Me.  91 
(1881);  s.c.  40  Am.  Rep.  343;  State 
V.  Hurley,  71  Me.  354  (1880);  State 
V.  Bartlett,  55  Me.  200  (1867)  ;  State 
r.  Conley,  39  Me.  78  (1854)  ;  Keitli- 
ler  V.  State,  18  Miss.  (10  Smed.  &  M.) 
192,  196  (1848);  Dowlin^  v.  State, 
13  Miss.  (5  Smed.  &  M.)  664  (1846)  ; 
Carpenter  v.  State,  5  Miss.  (4  How.) 
163;  s.c.  34  Am.  Dec.  116;  Wood- 
.sides  V.  State,  3  Miss.  (2  How.)  655 
(1837);  State  v.  Freeman,  21  ]\Io. 
481  (1855)  ;  State  v.  Zule,  10  N.  J.  L. 
(5   Ilalst.)    318    (1829)  ;    People    v. 


Thurston,  2  Park.  Cr.  Cas.  (N.  Y.) 
49  (1852)  ;  Turner  v.  Commonwealth, 
86  Pa.  St.  54  (1878)  ;  s.c.  27  Am.  Rep. 
683;  States.  Long,  1  Humph.  (Tenn.) 
386  (1839);  Mitchell  r.  State,  8  Yerg. 
(Tenn.)  514  (1835)  ;  Benedict?;.  State, 
12  Wis.  313  (1860);  United  States 
r.  Wilson,  Bald.  C.  C.  78  (1830); 
United  States  v.  Williams,  1  Cliff.  C.  C. 
5  (1858);  United  States  v.  Dawson, 
1  Hempst.  C.  C.  643  (1855);  United 
States  r.Keefe,  3  Mas.  C.  C.  475  (1824); 
Hollo  way  v.  Reg.  2  Den.  C.  C.  287 
(1851)  ;  Rex  v.  Townlej-,  18  How.  St. 
Tr.  330  (1746);  Broome  v.  Reg.  12  Q.  B. 
834  (1848)  ;  Rex  v.  Fearnley,  1  T.  R. 
316  (1786);  Rex  v.  Brooks,  Trem. 
P.  C.  151. 

3  State  r.  Lyons,  3  La.  An.  154 
(1848)  ;  State  r.  Peterson,  2  La.  An. 
921  (1847)  ;  Wagner  v.  People,  4 
Abb.  App.  Dec.  (N.  Y.)  509  (1866). 

*  Winn  V.  State,  5  Tex.  App.  621 
(1879). 

^  .Myers  r.  People,  4  T.  &  C.  (N.  Y.) 
292  (1874). 


SEC.  243.]         indictmi:nt  and  information. 


275 


that  the  prosecution  was  by  the  state,^  and  not  by  the  grand 
jury  of  a  county  in  the  state.^ 

It  shoukl  appear  by  the  caption  of  an  indictment  (1)  that 
the  grand  jury  were  legally  constituted ;  ^  (2)  that  they  were 
properly  sworn,*  and  on  their  oaths  present  the  indictment;^ 
(3)  in  what  county  the  court  was  held  and  the  grand  jurors 
were  sworn  ;^  (4)  and  in  some  jurisdictions  it  must  disclose 
the  names  and  style  of  office  of  the  judges  composing  the 
court ; "  (5)  that  the  grand  jurors  were  of  the  proper  county ;  ^ 
and  (6)  the  title  of  the  court,^  but  a  slight  variation  from 
the  correct  title  will  not  affect  the  indictment.^"  Thus  in 
People  V.  Thurston  ^^  it  was  held  not  to  be  a  valid  objection 
to  an  indictment  for  a  capital  offence,  that  in  its  caption  one 
of  the  justices  of  the  peace,  before  whom  it  was  found,  was 
described  as  "  in  and  for  the  county  of  ,"  whereas  jus- 
tices are  town  officers.^^ 


1  Savage  r.  State,  18  Fla.  909 
(1882)  ;  Saine  l:  State,  14  Tex.  App. 
144  (1884). 

2  State  v.  Cutter,  65  Mo.  503  (1877). 
See  People  i-.  Bennett,  37  N.  Y.  117 
(1867). 

3  Fitzgerald  v.  State,  4  Wis.  395 
(1855). 

*  In  an  indictment  for  murder  in 
Tennessee,  it  need  not  appear  in  the 
caption  that  the  jury  were  sworn,  if 
such  fact  appear  in  the  body  of  the 
indictment  returned  by  them.  State 
V.  Long,  1  Humph.  (Tenn.)  386  (1839). 

^  Vanvickle  i\  State,  22  Tex.  App. 
625  (1886)  ;  s.c.  2  S.  W.  Rep.  642. 

•^  State  r.  P'ields,  Peck  (Tenn.) 
140  (1823). 

But  it  has  been  held  in  Tennessee 
that  the  latter  fact  may  appear  in  the 
body  of  the  indictment.  State  v. 
Long,  1  Humph.  (Tenn.)  ,386  (1839). 

'  See  State  v.  Zule,  10  N.  J.  L.  (5 
Halst.)  348  (1820). 

8  Perkins  r.  State,  50  Ala.  154 
(1873)  ;  Beauchamp  v.  State,6  Blackf. 
(Ind.)  299  (1842)  ;  Byrd  r.  State,  2 
Miss.  (1  How.)  163  (1834)  ;  People 
V.  Haynes,  55  Barb.  (N.  Y.)  450 
(1869)  ;  Scales  v.  State,  7  Tex.  App. 
361  (1880)  ;  West  v.  State,  6  Tex. 
App.  485    (1879)  ;    Davis  v.  State,   6 


Tex.  App.  133  (1879);  United  States 
V.  Williams,  1  Cliff.  C.  C.  5  (1858)  ; 
Cornwellr.  State,  1  Mart.  &  Y.  (Tenn.) 
147  (1827)  ;  Bonds  v.  State,  1  Mart.  & 
Y.  (Tenn.)  143  (1827)  ;  s.c.  2  Laws. 
Def.  904  ;  17  Am.  Dec.  795. 

'•'  A  contrary  doctrine  is  held  in 
Taylor  v.  Commonwealth,  2  Va.  Cas. 
94  (1817). 

1'  Bonner  v.  State,  55  Ala.  242 
(1876) ;  Harrison  v.  State,  55  Ala. 
239  (1876)  ;  United  States  v.  Spaul- 
ding,  3  Dak.  85  (1882)  ;  s.c.  13  N.  W. ' 
Rep.  357,  538  ;  United  States  v.  Beebe, 
2  Dak.  292  (1880)  ;  s.c.  11  N.  W. 
Rep.  505 ;  State  v.  Munch,  22  Minn. 
67  (1875)  ;  State  r.  Meinhart,  73  Mo. 
562  (1881)  ;  State  c.  Sweeney,  68  Mo. 
96  (1878)  ;  United  States  i-.  Upham,  2 
Mont.  170  (1874)  ;  Firby  v.  State,  59 
Tenn.  -358  (1874). 

11  2  Park.  Cr.  Cas.  (N.  Y.)  49  (1852). 

12  In  the  case  of  Reg.  c.  Winegarner 
(W.  C.  Q.  B.),  25  Can.  L.  J.  215 
(1889). 

The  caption  to  an  inquisition  find- 
ing the  prisoner  guilty  of  murder, 
stated  that  the  inquest  was  held  at 
H.  and  C.  on  the  llth  and  15th  days 
of  January, in  the  51st  year  of  the 
reign  of  Her  Majesty  Victoria,  and 
the  inquisition   to  be  "an  inquisition 


276  HOMICIDE.  [chap.  XI. 

Sec.  244.    Charging  the  offence  —  General  Rules.  —  An 

indictment  for  any  degree  of  homicide  must  aver  the  exist- 
ence of  every  material  fact  or  circumstance  which  is  a  neces- 
sary element  in  the  offence  charged,  and  an  omission  of  any 
such  necessary  averment  is  fatal,^  even  after  verdict ;  ^  and  it 
must  be  directly  averred  that  the  defendant  did  the  act  with 
Avhich  he  is  charged.  Thus  an  information  for  murder  which 
informs  the  court  that  the  defendant  is  in  custody  on  the 
charge  of  felony,  without  indictment,  "said  charge  bein^ 
described  as  follows,"  and  followed  by  a  description  of  mur- 
der in  the  second  degree,  is  insufficient,  because  it  does  not 
allege  directl}^  in  proper  form,  that  the  defendant  did  the  act 
with  which  lie  is  charo-ed.'^  And  the  substitution  of  the  name 
of  the  deceased  for  that  of  the  defendant,  thus  alleging  that 
the  defendant  mortally  wounded  himself,  renders  an  indict- 
ment for  murder  fatally  defective.* 

In  an  indictment  for  murder  it  is  usually  considered  that 
the  word  "murder"  is  a  term  of  art  which  cannot  be  supplied 
by  any  other  word  ;  ^  and  if  an  indictment  fails  to  charge  that 
the  accused  feloniously  murdered  the  deceased,  although  it 
charges  him  with  inflicting  a  mortal  wound,  it  will  be  treated 
as  an  indictment  for  manslaughter  only,  and  not  for  murder.^ 

indented  taken  for  our  Sovereign  Lady  delivered  tlic  summons  for  tlie  jury, 

tlie  Queen,  &c.,  in  view  of  tlie  body  was  at  the  inquest  sworn  in  as  one  of 

of  an  infant  cliild   of   A.  W.  (one  of  the  jurymen  and  was  also  sworn  as  a 

the  prisoners),  then  and  there  lyin"-,  witness,  and  G.,  a  juryman,  was  also 

and    upon   tlie    oath    of    (giving    the  sworn    as  a  witness.     Held,  that    the 

names    of    the    jurymen),    good   and  fact    of   L.  being   such  constable  did 

lawful    men    of     the    country,    duly  not  preclude  him   from  being  on  the 

chosen,  and  who  being  then  and  there  jury,  or  did   either  of  sucii  positions 

duly  sworn   and    charged    to   enquire  j)reclude    him    giving   evidence   as    a 

for   our  said    Lady  tlie    Queen  wlien,  witness,  and    so    also    G.  Y.  was   not 

where,  how  and    by  what   means    the  precluded. 

said  female  child  came  to  her  death,  ^  State  c.  Verrill,  54  Me. 408  (1807). 

do   upon   their   oaths   say,"  &c.     The  ^  Pt,ople  v.  Cox,  9  Cal.  32  (1858); 

court  held,  that  the  statement  of  the  People  v.  Wallace,  9  Cal.  30  (1858). 

time  of  holding  the  inquest  was  suffi-  ^  piinn  v.  State,  24  Ind.  280  (1865). 

cient;    ^hat    it    sufficiently    appeared  ■*  State    v.    Edwards,    70    Mo.   480 

that  the  presentment  was  und(>r  oath,  (1879). 

and  that  it  need  not  be  under  seal  ;  "  Dias  v.  State,  7  Blackf.  (Ind.)  20 
that  there  was  a  sufficient  finding  of  (1843);  s.c.  39  Am.  Dec.  448;  State 
the  place  where  the  alleged  murder  v.  Harris,  12  Nev.  414  (1877).  Corn- 
was  committed  and  of  identification  /laip  State  r.  O'Niel,  23  Iowa,  272 
of  the  child  murdered  with  that  of  tlie  (1807). 

l)ody  of  which  the  view  was  had.     L.,  «  Dias  v.  State,  7  Blackf.  (Ind.)  20 

the   constable    to  whom    the    coroner  (1843)  ;  s.c.  39  Am.  Dec.  448.     Fol- 


SEC.  244.]  INDICTMENT    AND    INFORMATION.  277 

It  may  be  laid  down  as  a  general  rule  that  an  indictment 
is  sufficient  if  a  man  of  ordinary  intelligence  can  understand 
from  it  that,  under  such  circumstances  as  show  a  felonious 
intent,  a  mortal  wound  or  injury  was  inflicted  by  the  defend- 
ant upon  the  deceased,  of  which  wound  or  injury  the  latter 
died  within  a  year  and  a  day  from  the  time  of  its  infliction.^ 
It  has  been  said  that  under  a  statute  ^  prescribing  the  requi- 
sites of  indictments  and  informations,  and  requiring  a  state- 
ment of  the  facts  constituting  the  offence,  in  ordinary  and 
concise  language,  and  in  such  manner  as  to  enable  a  per- 
son of  common  understanding  to  know  what  is  intended,  an 
information  for  murder  is  sufficient  if  it  charges  that  the 
defendant  did  unlawfully,  feloniously,  and  of  his  malice  afore- 
thought, kill  the  deceased,  naming  him,  and  stating  the 
appropriate  time  and  place. ^  The  presence  in  the  indictment 
of  words  which  are  irrelevant  and  harmless  is  no  cause  for 
reversal  of  a  conviction.^  Thus  it  is  held  by  the  supreme 
court  of  New  York  that  an  indictment  for  murder  at  common 
law,  —  that  is,  charging  the  act  to  have  been  done  with  malice 
aforethought,  —  is  not  vitiated  by  the  addition  of  the  words, 
"  that  the  act  was  done  from  a  premeditated  design  to  effect 
the  death  of  the  deceased,"  because  such  latter  words  may 
be  rejected  as  surplusage.^ 

An  indictment  for  murder  which  charges  that  the  homicide 
was  committed  on  the  "  tweflth  day  of  August "  instead  of 
the  tivelfth  day  of  August,  may  be  good  under  the  statute, 
although  not  of  common  law.*" 


lowed  in    Reed  i-.  State,  8    Iiul.    202  2  guch  as  Col.  Pen.  Code,  §§  950, 

(1856).  959. 

.  1  People    r.    Davis,    73    Cal.    .355  »  People    v.    Davis,    73    Cal.    355 

(1887)  ;    People    v.  Llojd,  9   Cal.  54  (1887)  ;  s.c.  15  Pac.  Hep.  8. 
(1858).  *  Fahnestock  v.  State,  23  Ind.  231 

An    indictment   presented   by    the  (18(34) ;    People   v.  White,  22  Wend, 

grand  jury  of  tiie  Territory  of  Wash-  (N.  Y.)   107   (1839)  ;  Pennsylvania  i-. 

ington,   county    of    K.,  charging   de-  Bell,  1  Addis.  (Pa.)  156  (1793). 
fendant  in  said  county  with  purposely  ^  See  Fitzgerrold  v.  People,  4  Abb. 

and    maliciously    killing  deceased  by  (N,  Y.)  Pr.  N.  S.  68  (1868)  ;  5  Trans, 

shooting  and  mortally  wounding  said  App.    273  ;    affirming    s.c.   49    Barb, 

deceased    with  a  pistol,   from    which  (N.  Y.)  122. 

mortal  wound  deceased  instantly  died,  ^  State  v.  Shepherd,  8  Ired.  (N,  C.) 

is  sufficient  in  form.     Timnierman  ?•.  L.  195  (1847). 
Territory,  3    Wash.  Tr.  445    (1888)  ; 
s.c.  17  Pac.  Rep,  624. 


278  HOMICIDE.  [chap.  XI. 

Sec.  245.    Same  —  Charging-  in  two  counts  —  Election.^ 

—  It  is  well  settled  that  where  several  distinct  capital  felonies 
are  charged  in  the  same  indictment,  the  prosecution  may,  on 
motion,  elect  upon  which  count  to  proceed ;  ^  the  felonies 
charged  must  be  distinct  and  independent  ones.^  Instead  of 
requiring  an  election,  however,  the  court  may  permit  the 
prosecutor  to  nolle  pros,  the  extra  counts  ;^  but  in  those  cases 
where  the  act  charged  in  the  two  counts  is  the  same  charging 
a  different  intent  will  not  give  the  right  to  have  an  election  ;^ 
an  election  will  be  directed  only  where  the  offences  charged 
are  separate  and  distinct ;  ^  neither  will  an  election  be  ordered 
where  the  language  of  the  several  counts  is  varied  merely  to 
meet  the  proof.^ 

In  the  case  of  Theal  v.  Reg.^  an  indictment  contained  two 
counts,  one  charging  the  prisoner  with  murdering  M.  J.  T. 
on  the  first  day  of  November,  1881 ;  the  other  with  manslaugh- 
ter of  the  said  M.  J.  T.  on  the  same  day.  The  grand  jury 
found  "  a  true  bill."  A  motion  to  quash  the  indictment  for 
misjoinder  was  refused,  the  counsel  for  the  prosecution  elect- 
ing to  proceed  on  the  first  count  only,  and  on  judgment 
reserved  it  was  held,  affirming  the  judgment  of  the  supreme 
court  of  New  Brunswick,  that  the  indictment  was  sufficient. 

Where  an  election  between  two  or  more  counts  is  made, 
this  is  a  practical  abandonment  of  all  the  rest  of  the  indict- 
ment.^ It  is  in  no  case  the  duty  of  the  prosecuting  officer  to 
volunteer  an  election  as  to  the  count  upon  which  he  will  try 
the  defendant ;  the  defendant  must  move  to  secure  an  election 
at  the  proper  time  and  no  advantage  can  be  claimed  for  the 
omission. 1^ 

Sec.  246.  Same  —  As  at  common  law.  —  At  common  law 
homicide  can  be  prosecuted  only  by  indictment,  and  this  still 

1  See  /)o.sV,  §§  273,  274,  275.  e  People  v.  Campbell,  1  Etlm.  Sel. 

2  United  States  v.  Darnaud,  3  M^all.  Cas.  (N.  Y.)  307  (184()).  See  Camp- 
Jr.  C.  C.  143  (1855)  ;  United  States  bell  r.  State,  35  Ohio  St.  70  (1878); 
V.  Nye,  4  Fed.  Rep.  888  (1880).  State  r.  Halida,  28  W.  Va.  400  (1886). 

3  State  V.  Manluff,  1  Del.  Cr.  Cas.  "  State  v.  Morrison,  85  N.  C.  561 
208;    Goodhue   v.   People,  04   111.  37  (1881). 

(1880)  ;  State  v.  Scott,  15  S.  C.  434  »  7  Up.  Can.  S.  C.   K.  307  ;  s.c.  7 

(1881).  Can.  S.  C.  307. 

4  United  States  v.  Nye,  4  Fed.  Rep.  •'  State  v.  Snialley,  50  Vt.  736 
888  (ISHO).  (1878). 

aCandyf.  Slate,  8  Neb.  482  (1879).  i'U\^ople  v.  Dunn,  00   N.   Y.   104 


SEC.  247.]  INDICTMENT   AND   INFORMATION. 


279 


remains  tlie  general  rule ;  but  prosecutions  by  information 
are  sometime  allowed.^  In  the  federal  courts  prosecutions 
for  homicide  must  be  by  indictment,  because  all  grades  of 
homicide  are  infamous  crimes ;  ^  but  the  provision  of  the 
federal  constitution  limiting  such  prosecutions  to  this  form  is 
not  ap23licable  to  the  states.^ 

An  indictment  charging  the  offence  substantially  as  at 
common  law  is  usually  sufficient,*  and  it  has  been  said  that 
the  particularity  required  at  common  law  is  not  now  requisite, 
if  the  indictment  otherwise  contains  all  that  is  substantially 
necessary  to  inform  the  defendant  of  the  charge  against  him  ;  ^ 
and  a  common  law  indictment  for  murder,  not  sj^ecifying  the 
degree,  is  sufficient  to  sustain  a  conviction  of  murder  in  any 
degree  defined  by  the  statute  under  which  the  prosecution  is 
had.6 

Sec.  247.  Same —  In  the  language  of  the  statute.  —  An 
indictment  for  any  grade  of  homicide  which  charges  the 
offence  committed  in  the  form  prescribed  by  the  statute  is 
usually  sufficient  in  all  respects  ; ''  because  it  is  usually  suffi- 


(1882) ;  Commonwealth  v.  Stinger, 
15  Phila.  (Pa.)  375  (1881). 

1  See  Noles  v.  State,' 24  Ala.  J372 
(1854);  People  v.  Giancoli,  74  Cal. 
642;  s.c.  16  Pac.  Rep.  510  (1888). 

^  The  federal  constitution  provides 
that  "  No  person  shall  be  lield  to  an- 
swer for  a  capital  or  otherwise  infa- 
mous crime,  unless  on  presentment  or 
indictment  of  a  grand  jurj'."  Consti- 
tution of  United  States,  Amend,  to 
art.  5,  §  1. 

3  Noles  V.  State,  24  Ala.  672  (1854). 

*  People  V.  Dolan,  9  Cal.  576 
(1858) ;  People  v.  Lloyd,  9  Cal.  54 
(1858).  See  Geherke  v.  State,  13  Tex. 
568  (18.55). 

At  common  law  the  indictment  for 
manslaughter  is  not  sufficient  therefor 
under  Texas  Penal  Code,  article  59.3, 
defining  the  oifence  "  voluntary  homi- 
cide, committed  under  the  immediate 
influence  of  sudden  passion  arising 
from  an  adequate  cause,  but  neither 
justified  nor  excused  by  law."  Jen- 
nings V.  State,  7  Tex.  App.  350  (1880). 
Compare  Shrivers  v.  State,  7  Tex. 
App.  450  (1880). 


5  People  V.  Dolan,  9  Cal.  576  (1858). 

6  McAdams  v.  State,  25  Ark.  405 
(1809)  ;  Redus  v.  People,  10  Colo. 
208  (1887)  ;  Green  v.  Commonwealth, 
94  Mass.  (12  Allen)  155  (1866)  ;  Car- 
gen  V.  People,  39  Mich.  549  (1878)  ; 
People  V.  Willett,  102  N.  Y.  251  (1886) ; 
Taylor  v.  State,  11  Lea  (Tenn.)  708 
(1883)  ;  Hines  v.  State,  8  Humph. 
(Tenn.)  597  (1848)  ;  Mitchell  v.  State, 
5  Yerg.  (Tenn.)  340  (1833)  ;  s.c.  8 
Yerg.  (Tenn.)  514;  Wall  v.  State,  18 
Tex.  682  (1857);  s.c.  70  Am.  Dec. 
302 ;  Cluverius  v.  Commonwealth,  81 
Va.  787  (1886)';  Livingston  v.  Com- 
monwealth, 14  Gratt.  (Va.)  592  (1857). 
See  State  v.  Millain,  3  Nev.  409  (1867)  ; 
Tenorio  v.  Territory,  1  N.  Hex.  279 
(1859)-;  People  v.  Enoch,  13  Wend. 
(N.  Y.)  159  (18.34)  ;  s.c.  27  Am.  Dec. 
197;  McConnell  v.  State,  22  Tex.  App. 
354  (1886)  ;  s.c.  58  Am.  Rep.  647  ;  3 
S.  W.  Rep.  699 ;  State  v.  Cameron,  2 
Chand.  (Wis.)  172  (1850).  Compare 
Fonts  v.  State,  4  G.  Greene  (Iowa), 
500  (1854). 

"  See  People  v.  De  La  Cour  Soto, 
63  Cal.  165  (1883)  ;  People  v.  Murray, 


280  HOMICIDE.  [chap.  XL 

ciqnt  in  an  indictment  to  describe  any  statu  i^ory  offence  or 
homicide  in  the  language  of  the  statute  ;  ^  and  particularly  is 
this  true  where  by  itself  the  words  of  the  statute  the  homicide 
is  fully,  directly,  and  expressly  alleged,  without  uncertainty 
or  ambiguity^  as  where  the  terms  employed  by  the  statute 
have  a  fixed  legal  signification.^  Thus  it  has  been  held  that 
an  indictment  charging  murder  in  the  language  of  the 
statute,'*  sufficiently  sets  forth  the  "  nature  and  cause  of  the 
accusation  "  within  the  constitution  ;  the  words  "  deliberately 
and  of  malice  aforethought "  sufficiently  indicate  the  grade.^ 
And  it  has  been  held  in  Texas  that  on  an  indictment  following 
the  forms  prescribed  by  the  statute  is  sufficient  ^  in  charging 
that  the  defendant  "  did,  with  malice  aforethought,  kill  B  by 
striking  him  with  a  scantling,  against  the  peace  and  dignity 
of  the  State."  "  But  it  has  been  held  that  an  indictment  for 
manslaughter  is  insufficient  for  not  following  the  words  of 
the  statute  in  charging  the  killing.^ 

Sec.  248.    Same  —  Averment  that  the  act  was  unlawful. 

—  The  indictment  need  not  generally  use  the  word  "  unlaw- 
ful "  or  "  unlawfully  "  in  the  description  of  the  act  charged, 
it  being  sufficient  if  the  act  be  shown  to  be  unlawful  without 
any  set  word  or  words.^  If  the  indictment  is  for  murder,  the 
allegation  that  the  killing  was  with  malice  aforethought,  is  a 

10  Cal.  309  (1858)  ;  People  v.  Dolan,  United    States   v.  Lancaster,  2   McL. 

9  Cal.  57(3    (1858);  Nichols  v.  State,  C.  C.  431  (1841). 

46  Miss.  284  (1872)  ;  Graves  v.  State,  -  See   State   v.  Shentnn,  22   Minn. 

45    N.    J.    L.    (1(3    Vr.)    203    (1883);  311  (1875)  ;  State  z;.  Halsted,  39  N.  J. 

O'Kelly    u.    Territory,     1     Oreg.    51  L.  (10  Vr.)  402  (1877). 

(1853)  ;  Cathcart  v.  Commonwealth,  -^  See  State  v.  Davis,  70  Mo.  467 
37    Pa.    St.    108    (1860);    Peterson  v.  (1879). 

State,    12     Tex.    App.    650    (1883)  ;  *  N.  J.  Cr.  Proc.  §  45. 

Dvvyer   v.    State,    12    Tex.    App.    535  =  Graves   v.   State,  45  N.  J.  L.  (16 

(1883).  Vr.)  203  (1883);  s.c.   5  Cr.  L.  Mag. 

1  Lodano    v.    State,    25     Ala.    64  815 ;  4  Am.  Cr.  Rep.  386. 

(1854)  ;  State  v.  Moser,  33  Ark.   140  '•  Texas  Act,  March  26,  1881. 
(1878);  Fuller  v.  People,  92  111.  182  '^  Peterson   v.  State,  12   Tex.   App. 
(1879);     Smitii     r.    State,    85     Ind.  650  (1883) ;  Dwyer  v.  State,  12  Tex. 
553  (1882)  ;  State  v.  Tissing,  74  Mo.  App.  535  (1883). 

72     (1881);     State    v.    Keneston,    59  »<  Nichols   v.    State,    46    Miss.    284 

N.  H.  36    (1879);    Antle   v.  State,  6  (1872). 

Tex.    App.   202     (1879);     People    v.  ■'  Bcasley    v.    People,    89    III.   571 

Goiigh,  2    Utah,  70    ri879)  ;    Scott  r.  (1878);     Beavers    v.    State,    58    Ind. 

Coinnionwealtli,  77   Va.  .344    (1883);  5.30(1877);  State  r.  Lcepcr,  70  Iowa, 

State  V.  lliffe,  10  W.  Va.  794  (1877)  ;  748  (1886)  ;    s.c.  30  N.  W.  Rep.  501  ; 


SEC.  249.]  INDICTMENT    AND    INFORMATION.  281 

sufficient  showing  of  the  unlawfuhiess  of  the  act  causing 
death ;  ^  and  where  it  is  not  charged  that  the  killing  was  with 
malice,  the  statement  of  facts  showing  an  unlawful  act  is 
sufficient.^ 

An  indictment  for  involuntary  manslaughter  must  show 
that  the  defendant  was  in  the  commission  of  some  unlawful 
act,  and  that  the  death  resulted  therefrom.  Alleging  in  such 
case  that  the  death  resulted  from  using  unlawfulh%  wilfully, 
and  feloniously  an  instrument  upon  a  pregnant  female,  for 
the  pui'pose  of  producing  a  miscarriage,  the  use  of  such  instru- 
ment not  being  necessary  to  preserve  the  life  of  the  woman,  is 
sufficient.^ 

Sec.  249.  Same  — In  abortion.  — In  State  v.  Leeper,*  an 
indictment  for  murder  in  producing  an  abortion  contained 
two  counts,  in  one  of  which  it  was  charged  that  the  defendant 
attempted  to  produce  a  miscarriage  on  the  deceased  by  means 
of  a  certain  instrument,  and  in  the  other  that  he  administered 
to  the  deceased  a  "  certain  noxious  and  abortifacient  drug," 
with  the  intent  to  produce  such  miscarriage  ;  and  in  both 
counts  it  was  alleged  that  it  was  not  then  and  there  necessary 
to  cause  such  miscarriage  for  the  preservation  of  the  life  of 
the  deceased.  It  was  held,  that  an  exception  in  the  statute  ^ 
providing  for  the  punishment,  &c.,  "  unless  the  same  were 
done  as  necessary  for  the  preservation  of  the  mother's  life," 
was  sufficiently  negatived  by  the  indictment,  and  that, 
although  the  language  used  in  the  indictment  negatived 
more  than  the  statute  required,  this  formed  no  valid  objection 
to  the  same,  since  it  imposed  on  the  prosecution  the  neces- 
sity for  stricter  proof.     In  an  indictment  for  the  crime  of 

Thompson    v.     State,    36     Tex.    326  111  ;  Bean  i.-.  State,  17  Tex.  App.  60 

(1872);    Jacks;an    v.   State,    22    Tex.  (1885). 

App.  442  (1887) ;    s.c.  3  S.  W.  Rep.  -  Beasley    v.   People,    89    111.    571 

111 ;  Bean  v.  State,  17   Tex.   App.  60  (1878)  ,  State  v.  Lceper,  70  Iowa,  748 

(1885).     See  Willey  v.  State,  46  Ind.  (1886).     See    State    v.    Lay,    93    Ind. 

363    (1874)  ;     SutclifCe    v.    State,    18  341  (1883)  ;   Willey  f.  State,  46  Ind. 

Ohio,  469  (1849)  ;    .s.c.  51  Am.  Dec.  363  (1874).     Compare  Henry  v.  State, 

459.     Compare  Henry  v.  State,  33  Ala.  33  Ala.  389  (1859). 

389  (18.59).  3  Willey    v.    State,    46    Ind.    363 

1  Beavers    v.   State,    58    Ind.    5.30  (1874). 

(1877)  ;  Thompson  v.  State,  .36  Tex.  *  70    Iowa,    748    (1886)  ;     s.c.   30 

.326  (1872)  ;  .Jackson  t-.  State,  22  Tex.  N.  W.  Rep.  501. 

App.  442  (1887)  ;  s.c.  3  S.  W.  Rep.  ^  Iowa  Code,  §  3864. 


282  HOMICIDE.  [chap.  XI. 

murder,  committed  by  producing  the  miscarriage  of  a  preg- 
nant woman,  showed  that  the  acts  alleged  were  done  with 
the  design  and  intention  to  produce  a  miscarriage,  which,  it 
was  averred,  was  not  necessary  to  save  the  life  of  the  woman, 
and  this  w^as  held  to  be  sufficient  under  the  statute  defining 
the  offence.^ 

Sec.  250.  Same  —  Intent  —  Simple  averment  of  intent 
to  kill.  —  As  a  general  rule,  a  purpose  to  kill  must  be  spe- 
cifically averred  in  an  indictment  for  murder  in  a  description 
of  the  offence  ;  ^  but  such  an  averment  is  not  necessary  where 
the  homicide  is  charged  to  have  been  committed  while  the 
slaj'er  was  engaged  in  the  commission  of  a  felony,'^  nor  where 
it  is  charged  to  have  been  committed  by  means  of  poison 
unlawfully  administered.*  The  averment  need  not  be  in  the 
words  of  the  statute,  but  is  sufficient  if  in  language  which 
plainly  shows  the  deadl}^  purpose.^ 

An  averment  that  the  accused  "  purposely  gave  a  mortal 
wound,"  sufficiently  alleges  a  purpose  to  kill.*^  In  an  indict- 
ment for  murder  by  poison,  an  averment  that  the  defendant 
knew  of  its  noxious  properties  is  not  essential.''' 

Where  the  purpose  to  kill  is  not  averred  by  w^ay  of  de- 
scription of  the  offence,  the  omission  cannot  be  aided  by  the 
ordinary  formal  conclusion  of  the  indictment  which  avers 
that  "  so  "  the  jurors  do  find  and  say  that  the  accused  "  did 
in  manner  and  form  aforesaid,  feloniously,  purposely,  and  of 
his  deliberate  and  fraudulent  malice,  kill  and  murder  the 
deceased,"  because  such  allecration  being-  nothing'  more  than 
a  legal  conclusion  arising  from  the  facts  previously  stated, 

1  Beasley   v.   People,   89    111.    571  Slagle,  88  N.  C.  630  (1881)  ;  Robins 

(1878).  V.  State,  8  Ohio  St.  131  (1857). 

•^  Schaffer   v.   State,   22    Keb.   557  3  Cox    v.    People,     80    N.   Y.    500 

(1887);     s.c.    35    N.    W.    Rep.    384;  (1880). 

Loeffner    v.    State,    10    Oliio    St.    598  *  Commonwealth     v.     Hersey,     84 

(1857)  ;  s.c.  Law.  Insan.  432  ;  Hagan  Mass.  (2  Allen)  173  (18G1).     Compare 

V.  State,  10  Ohio  St.  459  (1859)  ;  Kain  Robins  v.  State,  8  Ohio  St.  131  (1857). 
V.  State,  8  Ohio  St.  30(3  (1858)  ;  Fonts  ^  Loeffner  v.  State,  10  Ohio  St.  598 

?-.  State,  8   Ohio   St.  98    (1857).     See  (1857);  s.c.  Law.  Insan.  432. 
Sny.ler  r.  State,  59  Tnd.  105   (1877)  ;  «  Loeffner  v.  State,  10  Ohio  St.  598 

Commonwealth    v.   Hersey,   84    Mass.  (1857)  ;  s.c.  Law.  Insan.  432. 
(2    Allen)    173   (18(!1);     Morman    v.  'State   v.    Slagle,   83   N.    C.    630 

State,  24  Miss.  54  (1852)  ;   Cox  v.  Peo-  (1881). 
pie,  80   N,  Y.  500    (1880)  ;    State    v. 


SEC.  251.]  INDICTMENT    AND    INFORMATION. 


283 


cannot  cure  any  defects  in  the  premises  on  which  it  assumes 
to  be  predicated.! 

Sec.  251.  Same  —  Wilfully,  feloniously,  and  with  malice 
aforethought.  —  Malice  aforethought  is  a  necessary  ingredi- 
ent in  the  crime  of  murder,  and  shoukl  be  specifically  alleged 
in  the  indictment,  either  expressly  or  by  words  which  nec- 
essarily import  malice  aforethought.^  "  Maliciously "  and 
malice  aforethought  may  be  used  interchangeably .^ 


1  Schaffer   v.   State,   22    Neb.   557 

(1887)  ;  s.c.  S5  N.  W.  Rep.  384. 

-  Edwards  v.  State,  25  Ark.  444 
(1869)  ;  Anderson  r.  State,  5  Ark. 
444  (1843);  People  v.  Davis,  73  Cal. 
355  (1887)  ;  s.c.  15  Pac.  Rep.  8; 
People  V.  Sehiiiidt,  63  Cal.  28  (1883); 
People  V.  BoniUa,  38  Cal.  699  (1869; ; 
People  v.  Vance,  21  Cal.  400  (1863)  ; 
People  r.  Urias,  12  Cal.  325  (18-59); 
Redus  V.  People,  10  Colo.  208  (1887)  ; 
.s.c.  14  Pac.  Rep.  323;  Territory  v. 
Evans    (Idaho),    17    Pac.    Rep.    1.39 

(1888)  ;  Finn  v.  State,  5  Ind.  400 
(1854);  State  i-.  TliuVman,  66  Iowa, 
693  (1885);  s.c.  24  N.  W.  Rep.  511; 
State  I'.  Neeley,  20  Iowa,  108  (1865)  ; 
Fonts  V.  State,  4  G.  Greene  (Iowa), 
500  (1854)  ;  State  v.  Fooks,  29  Kan. 
425  (1883)  ;  Jane  v.  Connnon wealth, 
3  Met.  (Ky.)  18  (1860)  ;  State  v. 
Williams,  .37  La.  An.  311  (1885)  ; 
State  V.  Bradford,  33  La.  An.  921 
(1881) ;  State  ;;.  Thomas,  29  La.  An. 
601  (1877)  StJite  v.  Florenza,  28  La. 
An.  945  (1876);  State  v.  Harris,  27 
La.  An.  572  (1875)  ;  State  v.  Forney, 
24  La.  An.  191  (1872);  State  v. 
Phelps,  24  La.  An.  493  (1872)  ;  State 
V.  Holong,  38  Minn.  .368  (1888) ;  s.c. 
37  N.  W.  Rep.  587  ;  State  v.  Johnson, 
37  Minn.  493  (1887) ;  s.c.  35  N.  W. 
Rep.  373;  State  v.  Lowe,  93  Mo.  547 
(1887)  ;  s.c.  5  S.  W.  Rep.  889;  State 
V.  Eaton,  75  Mo.  586  (1882);  Terri- 
tory V.  Manton,  8  Mont.  95  (1888)  ; 
s.c.  14  Pac.  Rep.  637  ;  Schaffer  v. 
State,  22  Neb.  557  (1887)  ;  s.c.  35 
N.  W.  Rep.  384;  Slate  v.  Pike,  49 
N.  H.  399  (1870);  s.c.  6  Am.  Rep. 
533;  Fitzgerrold  (,'.  People,  37  N.  Y. 
413  (1868)  ;  Loeffner  v.  State,  10  Ohio 


St.  .598  (1857)  ;  s.c.  Law.  Insan.  432; 
Sharp  1-.  State,  19  Ohio,  .379  (1850); 
State  V.  AVimberly,  3  McC.  (S.  C.) 
190  (1825)  ;  Witt  i:  State,  6  Coldw. 
(Tenn.)  5  (1868)  ;  Riddle  v.  State,  3 
Heisk  (Tenn.)  401  (1872)  ;  Williams 
V.  Stale,  3  Heisk.  (Tenn.)  376  (1872) ; 
s.c.  I  Green  Cr.  Rep.  255;  Fisher  v. 
State,  10  Lea  (Tenn.)  151  (1882); 
Henrie  v.  State,  41  Tex.  573  (1874); 
Rather  v.  State,  25  Te.x.  App.  623 
(1888)  ;  s.c.  9  S.  W.  Rep.  69;  Banks 
V.  State,  24  Tex.  App.  559  (1888); 
s.c.  7  S.  W.  Rep.  327;  McConnell  v. 
State,  22  Tex.  App.  354  (1886);  s.c. 
58  Am.  Rep.  647  ;  3  S.  W.  Rep.  699  ; 
Bohaimon  v.  State,  14  Tex.  App.  271 
(1884)  ;  Territory  v.  Halliday  (Utah 
Tr.)  17  Pac.  Rep.  118  (1888)  ;  Com- 
monwealth V.  Gibsoif,  2  Va.  Cas.  70 
(1817)  ;  State  v.  Duvall,  26  AVis.  416. 
Compare  State  v.  Fooks,  20  Kan.  425 
(1883);  State  v.  Scott,  38  La.  An. 
387  (1886)  ;  Commonwealth  v.  Her- 
sey,  84  Mass.  (2  Allen)  173  (1801)  ; 
Commonwealth  i\  Chapman,  65  Mass. 
(II  Cush.)  422  (1853).  A  warrant 
charging  that  the  prisoners  "  did 
feloniously  shoot  at,  &c.,  with  intent, 
&c.,  to  kill  and  murder,  sufficiently 
charged  an  assault  with  intent  to  com- 
mit murder,"  within  the  words  used  in 
the  Ashburton  treaty  and  statute. 
Reg.  v.  Reno  et  at.,  4  Up.  Can.  Q.  B.  281 . 

3  People  V.  Vance,  21  Cal.  400 
(1863)  ;  Fisher  v.  State,  10  Lea 
(Tenn.)  151  (1882). 

An  indictment  under  the  Wiscon- 
sin statute  charged  that  the  defendant, 
"  contriving  and  intending  to  kill  one 
E.  D.,  with  malice  aforctliought,  and 
from  premeditated    design   to   effect 


284  HOMICIDE.  [chap.  XI. 

To  charge  that  the  defendant  did  lay  in  wait  with  intent  to 
"murder";  or  did  feloniously  "kill,  slay,  and  murder,"  suffi- 
ciently implies  malice  aforethought.^  In  an  indictment  for 
murder  the  crime  is  sufficiently  charged  under  the  averment 
that  the  accused  "  did  wilfully  and  feloniously  shoot  and 
wound  .  .  .  with  the  intent  .  .  .  wilfully,  feloniously,  and 
of  his  malice  aforethought,  to  kill,"  &c.  The  charge  of 
malice  in  the  shooting,  as  well  as  in  the  intent  to  kill,  is 
not  indispensable.^  And  it  has  been  said  that  in  an  indict- 
ment for  murder  in  the  second  degree,  the  use  of  the  words 
"  feloniously,  intentionally,  wilfully,  maliciously,  and  deliber- 
ately "  implies  necessaril}-,  to  the  common  understanding, 
malice  aforethought,  and  this  is  all  that  is  required  to  render 
the  indictment  sufficient.^ 

In  the  case  of  Territory  v.  Manton  ^  the  indictment  charged 
that  the  defendant  was  the  husband  of  the  deceased,  and  as 
such  owed  her  the  duty  of  protection  ;  that  she  was  feeble,  sick, 
and  unable  to  walk ;  that  the  defendant  had  the  ability  to  take 
care  of  her,  but  left  her  exposed  in  the  nighttime  to  the  cold 
and  inclemency  of  the  weather,  refusing  to  provide  her  with 
clothing  and  shelter;  and  that  he  did  this  feloniously,  wilfully, 
purposely,  premeditatedly,  and  of  his  malice  aforethought, 
and  that  she,  "  languishing  of  such  exposure,  leaving,  and  of 
such  neglecting,  omitting,  and  refusing  to  provide  clothing 
and  shelter  .  .  .  did  die  "  ;  and  that  thus  the  defendant  felo- 
niously, wilfully,  purposely,  premeditatedly,  and  of  his  malice 
aforethought,  did  kill  and  murder  her.  The  court  held  that 
it  sufficiently  charged  the  offence  of  murder  in  the  second 
degree,  under  the  Montana  statute^  defining  mui'der  as  "the 
unlawful  killing  of  a  human  being,  with  malice  aforethought. 


the  death  of  her,  the  said  E.  D.,"  &c.,  '  i  State  v.  Forney,  24  La.  An.   191 

"  tlien  and  there  a  large  quantity  of  a  (1872);   State    v.  Tlielps,  24  La.  An, 

certain    deadly  poison   called    strych-  494  (1872). 

nine,  knownigly,  wilfully,  and  feloni-  "-  State  v.  Bradford,  .33  La.  An.  021 

ously  did   give  and    administer,"    &c.  (1881). 

The  court  held  that  the  words  "with  ^  State    v.    Neclcy,    20    Iowa,    108 

malice  aforethought  "  properly  quali-  (1865). 

fied    the    words    "did    give,"  &c.,  and  *8  Mont.  95  (1888);  s.r.  14  Pac. 

not  the  words  "  contriving  and  intend-  Rep.  637  (1888). 

ing,"    &c.,   and    that    the   charge  was  &  Rev.  Stat.  Mont.,  p.  358,  §  18. 

therefore  sufficient.     State  v.  JJuvall, 

20  Wis.  410  (187U). 


SEC.  252.]  INDICTMENT    AND    INFORMATION. 


285 


either  expressed  or  im[)lied/''  and  providing  that  "  the  unLaw- 
ful  killing  may  be  effected  by  any  of  the  various  means  by 
which  death  may  be  occasioned." 

Malice  aforethought  and  intention  to  kill  are  not  necessa- 
rily identical ;  an  averment  of  intent  to  kill  is  not  alone 
sufficient.^  It  must  be  also  charged  that  the  homicide  was 
committed  "  feloniously  "  ^  and  unlawfully.-^  But  an  indict- 
ment for  murder  is  not  defective  because  the  "striking," 
"penetrating,"  and  ""wounding"  are  not  alleged  to  have 
been  wilfully  done,  the  word  "  wilfully  "  occurring  a  number 
of  times  in  other  connections.* 

Manslaughter  being  a  homicide  committed  without  malice, 
an  averment  that  the  killing  was  with  malice  aforethought 
is  unnecessary,^  and  so  also  is  the  word  "feloniously."*' 

Sec.  252.    Same  —  Premeditation  autl  deliberation.  —  An 

indictment  for  murder  in  the  first  degree,  which  is  not 
charged  to  have  been  committed  in  the  perpetration,  or  an 
attempt  to  perpetrate,  a  forcible  felony,  must  aver,  not  only 
that  the  killing  was  done  "  wilfully,  feloniously,  and  with 
malice  aforethought,"  but  also  tliat  it  was  done  with  delibera- 


1  People  V.  Urias,  12  Cal.  325 
(1859). 

'^  Edwards  v.  State,  25  Ark.  444 
(18tt9).  See  Anderson  v.  State,  5 
Ark.  444  (184.3)  ;  Fitzgerald  v.  Peo- 
ple, 49  Barb.  (N.  Y.)  122  (1867)  ; 
Witt  V.  State,  (3  Coldw.  (Tenn.)  5 
(1868).  Compare  Kiddie  v.  State,  3 
Heisk.  (Tenn.)  401  (1872)  ;  W^illianis 
V.  State,  8  Heisk.  (Tenn.)  376  (1872)  ; 
s.c.  1  Gr.  Cr.  Rep.  255  ;  Chase  v.  State, 
50  Wis.  510  (1880)  ;  s.c.  7  N.  W.  Rep. 
376. 

3  State  V.  Seott,  38  La.  An.  387 
(1886)  ;  State  v.  Williams,  37  La.  An. 
776  (1885)  ;  overruling^  State  v.  Har- 
ris, 27  La.  An.  572  (1875)  ;  State  v. 
Tliomas,  29  La.  An.  601  (1877).  See 
People  V.  Davis,  73  Cal.  355  (1887)  ; 
s.c.  15  Pac.  Rep.  8;  Redus  v.  People, 
10  Colo.  208  (1887);  s.c.  14  Pae.  Rep. 
323;  Territory  v.  Evans  (Idaho),  17 
Pac.  Rep.  139  ;  Finn  v.  State,  5  Ind. 
400  (1854)  ;  State  v.  Neeley,  20  Iowa, 
108    (1865);     Fouts   v.   State,  4    G. 


Greene  (Iowa)  500  (1854)  ;  State  v. 
Bradford,  33  La.  An.  921  (1881); 
State  V.  Florenza,  28  La.  An.  945 
(1876)  ;  State  v.  Forney,  24  La.  An. 
191  (1872)  ;  State  r.  Phelps,  24  La. 
An.  493  (1872)  ;  State  v.  Lowe,  93 
Mo.  547  (1887);  s.c.  5  S.  W.  Rep. 
889;  State  v.  Eaton,  75  Mo.  586  (1882) ; 
Territory  v.  Manton,  8  Mont.  95 
(1887)  ;  s.c.  14  Pae.  Rep.  637  ; 
Schaffer  v.  State,  22  Neb.  557  (1887)  ; 
s.c.  35  N.  W.  Rep.  384.  Compare 
Commonwealth  r.  Herse}',  84  Mass. 
(2  Allen)  173  (1861)  ;  Commonwealth 
)'.  Chapman,  65  Mass.  (11  Cash.)  422 
(1853)  ;  Chase  v.  State,  50  Wis.  510 
(1880)  ;  s.c.  7  N.  W.  Rep.  376. 

*  State  V.  Eaton,  75  Mo.  586 
(1882). 

^  State  ;.'.  Sundheimer,  93  Mo.  311 
(1887)  ;  s.c.  6  S.  W.  Rep.  .52  ;  Baldwin 
'v.  State,  12  Neb.  61  (1881)  ;  s.c.  10 
N.  W.  Rep.  463. 

«  State  r.  Wimberly,  3  McC.  (S.  C) 
190  (1825). 


286 


HOMICIDE. 


[chap.  XI. 


tion  and  premeditation.^  The  deliberation  and  premeditation 
must  be  predicated  directly  of  the  killing;  and  an  indict- 
ment is  not  sufficient  which  avers  only  that  the  act  from 
wliich  death  resulted  was  committed  with  deliberation  and 
premeditation.2  And  the  omission  is  not  supplied  by  the 
conclusion,  "and  so  the  jurors  do  say  that  "  the  prisoner,  "in 
the  manner  and  by  the   means  aforesaid,  purposely  and  of 


1  Wiggins  V.  State,  23  Fla.  180 
(1887)  ;  s.c.  1  So.  Rep.  690;  Finn  v. 
State,  5  Ind.  400  (1854)  ;  State  v. 
Shelton,  G4  Iowa,  33o  (1884) ;  s.c.  20 
N.  W.  Rep.  459 ;  State  v.  Boyle,  28 
Iowa,  522  (1870)  ;  State  v.  Watkins, 
27  Iowa,  415  (18(59)  ;  State  i-.  McCor- 
mick,  27  Iowa,  402  (1809);  Fonts  v. 
State,  4  G.  Greene  (Iowa)  500  (18-54)  ; 
State  V.  McGaffin,  36  Kan.  315  (1887) ; 
s.c.  13  Pac.  Rep.  560 ;  State  w.  Brown, 
21  Kan.  38  (1878)  ;  State  v.  Jones,  20 
Mo.  58  (1854)  ;  Loeffner  v.  State,  10 
Ohio  St.  598  (1857)  ';  s.c.  Law.  Insan. 
432  ;  Hagan  v.  State,  10  Ohio  St.  459 
(1859)  ;  Kain  v.  State,  8  Ohio  St.  .306 
(1858)  ;  Fonts  i'.  State,  8  Ohio  St.  98 
(1857);  Poole  v.  State,  58  Tenn.  288 
(1872)  ;  White  v.  State,  16  Tex. 
206  (1856)  ;  Leonard  v.  Territory,  2 
Wash.  Tr.  381  (1885)  ;  s.c.  7  Pac. 
Rep.  872.  See  State  v.  Hamlin,  47 
Conn.  95  (1879)  ;  s.c.  .36  Am.  Rep. 
54 ;  State  v.  Perigo,  70  Iowa,  657 
(1886);  s.c.  8  Cr.  L.  Mag.  1-56;  28 
N.  W.  Rep.  457  ;  State  v.  Whitaker, 
35  Kan.  731  (1886);  s.c.  9  Cr.  L. 
Mag.  42;  12  Pac.  Rep.  106;  State  v. 
Duvall,36  Wis.  416  (1870).  Compare 
People  ('.  Bonilla,  38  Cal.  699  (1869) ; 
People  V.  Murray,  10  Cal.  .309  (18-58) ; 
People  i:  Lloyd,  9  Cal.  54  (1858)  ;  Re- 
dus  V.  People,  10  Colo.  208  (1887)  ; 
Hill  V.  People,  1  Colo.  436  (1872); 
State  V.  Johnson,  8  Iowa,  525  (1859)  ; 
s.c.  74  Am.  Dec.  .321  ;  Green  v. 
Commonwealth,  94  Mass.  (12  Allen) 
155  (1866)  ;  State  v.  .Johnson,  37 
Minn.  493  (1887)  ;  s.c.  35  N.  W. 
Rep.  373  ;  State  v.  Lessing,  16  Minn. 
75  (1870)  ;  State  v.  Crozier,  12  Nev. 
.300  (1877)  ;  State  v.  Thompson,  12 
Nev.  140  (1877)  ;  Kennedy  v.  People, 
39  N.  Y.  249   (1868)  ;    Fitzgerald    v. 


People,  37  N.  Y.  415  (1868)  ;  s.c.  49 
Barb.  (N.  Y.)  122  ;  Mitchell  v.  State, 
8  Yerg.  (Tenn.)  514  (1835) ;  Bohan- 
non  V.  State,  14  Tex.  App.  271 
(1884) ;  Livingston  v.  Commonwealth, 
14  Gratt.  (Va.)  592  (1857);  Bull 
I).  Commonwealth,  14  Gratt.  (Va.)  613 

(1857)  ;  Chase  v.  State,  50  Wis.  510 
(1880) ;  s.c.  7  N.  W.  Rep.  376. 

Those  of  the  foregoing  decisions 
which  refuse  to  recognize  this  rule, 
notwithstanding  the  fact  tlint  the 
phrase  "  malice  aforethought  "  does 
not,  in  its  strict  legal  sense,  import  a 
premeditated  intention  to  kill  the 
individual,  are  based  on  the  grounds 
that  the  statute  creates  no  new  of- 
fence; that  murder  of  the  first  and 
murder  of  the  second  degree  are  not 
two  distinct  crimes,  the  statute  merely 
dividing  murder  into  two  degrees ; 
that  the  punishment  of  the  higher 
grade  of  the  crime  is  not  changed  ; 
that  all  which  the  statute  does  is  to 
provide  the  milder  punishment  of 
imprisonment  for  murder  of  the  sec- 
ond degree,  all  murder  having  before 
been  punishable  by  death  ;  that  the 
statute  only  specifies  certain  things, 
which  if  found  by  the  jury,  shall  re- 
quire them  to  bring  in  a  verdict  sub- 
jecting the  prisoner  to  death  ;  while 
if  they  are  not  so  found,  the  verdict 
shall  be  one  authorizing  imprisonment 
merely. 

-  State  r.  Brown,  21  Kan.  .38 
(1878)  ;  Kain  r.  State,  8  Ohio  St.  306 

(1858)  ;  Fonts  v.  State,  8  Ohio  St. 
98  (1857);  Leonard  v.  Territory,  2 
Wash.  Tr.  381  (1885)  ;  s.c.  7  Pac. 
Rep.  872.  Compare  State  v.  Shelton, 
64  Iowa,  333.(1884);  s.c.  20  N.  W. 
liep.  459. 


SEC.  253.]  INDICTMENT   AND   INFORMATION.  287 

deliberate  and  premeditated  malice,  did  kill  and  mnrder"  the 
deceased.^ 

An  indictment  charging  that  the  defendant,  of  deliberate 
and  premeditated  malice,  did  slioot  against  the  body  of  B., 
and  thereby  give  to  B.  one  mortal  wound,  of  which  mortal 
w^ound  B.  died,  is  not  good  on  an  indictment  for  murder  in 
the  first  degree.^ 

In  the  case  of  State  v.  Whitaker  ^  an  information  for  mur- 
der in  the  first  degree  alleged,  among  other  things,  that  ]\I., 
C,  and  W.  did  then  and  there  unlawfully,  feloniously,  pur- 
posely, and  of  their  deliberate  and  premeditated  malice,  make 
an  assault  upon  T. ;  that  M.  did  purposely  discharge  and 
shoot  off  against  T.  a  double-barrelled  shot-gun,  giving  him 
a  mortal  wound,  of  which  wound  he  died  a  few  hours  there- 
after; that  C.  and  W.  then  and  there,  by  the  means  and  in 
manner  aforesaid,  aided,  abetted,  and  assisted  M.  to  do  the 
acts  set  forth ;  that  M.,  C,  and  W.,  in  the  manner  and  by 
the  means  stated,  purposely  and  of  their  deliberate  and  pre- 
meditated malice,  did  kill  and  murder  T.  It  was  held  that 
the  information  taken  together  alleged  that  the  killing  of  T. 
was  wilful,  deliberate,  and  premeditated. 

Sec.  253.  Same  —  Specifying  the  degree.  —  The  degree 
of  murder  of  which  the  defendant  may  be  guilty  is  a  conclusion 
of  law  to  be  drawai  from  the  facts  averred  and  proved,  and 
therefore  it  is  not  necessary  that  it  be  specified  in  the  indict- 
ment ;  *  but  it  is  not  error  to  set  out  the  degree,^  as  such  a 
statement  may  be  rejected  as  surplusage.^ 

Thus  it  has  been  said  that  under  a  statute '  providing  that 

1  Kain  v.  State,  8  Oliio  St.  316  Wicks  v.  Commonwealth,  2  Va.  Cas. 
(1858)  ;  Fouts  v.  State,  8  Ohio  St.  98  .387  (1824)  ;  Commonwealth  v.  Miller, 
(1857).  1  Va.  Cas.  310  (1812)  ;  Leschi  v.  Ter- 

2  State  V.Brown, 21  Kan.  38  (1878).     ritory,  1   Wash.  23  (1857).     Compare 
2  35  Kan.  731  (1886)  ;  s.c.  9  Cr.  L.     Smith  v.  State,  50  Conn.  193  (1882). 

Mag.  42  ;  12  Pao.  Kep.  106.  5  People  r.  King,  27  Cal.  507  (1865)  ; 

4  People  V.  Kuif],  27  Cal.  507  (1865)  ;  s.c.  87  Am.  Dec.  95  ;  People  ;•.  Dolan, 

s.c.  87  Am.  Dec.  95  ;  People  1-.  Dolan,  9    Cal.    576    (1858).       See    People  v. 

9  Cal.  576   (1858)  ;    People  ('.  Lloyd,  Vance,  21  Cal.  400  (1863). 
9  Cal.  54  (1858)  ;  State  v.  Dumphej^  6  People  v.  King,  27  Cal.  507  (1865)  ; 

4  Minn.  4-38(1860);  Territory  !>.0'Don-  s.c.  87  Am.  Dec.  95. 
nell  (N.  M.),  12  Pac.  Kep.  743  (1887)  ;  '  Sucli  as  Conn.  Gen.  Stat.,  p.  498, 

William    v.  State,  3    Heisk.    (Tenn.)  §  1. 
376  (1872)  ;  s.c.  1  Gr.  Cr,  Rep.  255; 


288  HOMICIDE.  [chap.  XI. 

in  all  indictments  for  murder  "  the  degree  of  the  crime 
charged  shall  be  alleged,"  it  is  sufficient  if,  after  stating  the 
crime  of  the  common  law  form,  an  averment  be  added  that 
the  accused  did  thereby  commit  murder  in  the  first  degree ; 
the  distino-uishino:  facts  need  not  otherwise  be  set  out.^ 

Where  an  indictment  charges  the  defendant  with  the  crime 
of  manslaughter,  and  then  proceeds  to  state  facts  which  con- 
stitute the  crime  of  murder,  the  error  is  favorable  to  the  de- 
fendant, and  he  cannot  complain  .^ 

Sec.  254.  Same — Charging^  killing  while  coinmittiug 
another  offence.  —  Where  the  indictment  avers  facts  suffi- 
cient to  constitute  murder  in  the  first  degree,  the  defendant 
ma}'  be  convicted  upon  proof  that  the  homicide  was  committed 
in  perpetrating  or  attempting  to  perpetrate  arson,  rape,  bur- 
glary, or  robbery,  although  the  indictment  makes  no  reference 
to  that  fact.^  But  if  the  (?ommission  of  such  an  offence  is 
made  the  basis  of  the  charge,  it  must  be  pleaded  with  the  same 
formality  and  particularity  as  if  the  defendant  was  charged 
solely  with  that  crime.  An  averment  that  defendant  com- 
mitted the  homicide  in  attempting  to  perpetrate  a  specified 
offence,  without  showing  his  acts  upon  that  occasion,  states  a 
mere  conclusion  of  law,  and  is  fatally  defective.  Thus  where 
an  indictment  for  murder  charged  that  the  defendant,  at  a 
stated  time  and  place,  "  in  and  u}>on  one  S.,  .  .  .  did  commit 
rape,  and  in  attempting  to  commit  j-ape  a!id  in  committing 
rape  in  and  upon  her,  the  said  S.,  did  kill  the  said  S.,  con- 
trary," &c.,  in  the  case  of  Titus  v.  State,*  was  held  to  be 
fundamentally  and  fatally  defective,  because  if  it  was  neces- 
sary to  show  a  rape  as  one  of  the  constituents  of  the  offence 
of  murder,  such  crime  should  have  been  pleaded  with  the 
same  formality  as  is  requisite  when  it  forms  the  sole  basis  of 
an  indictment. 

Sec.  255.  Same  —  Means  and  manner  of  the  homicide 
— Averment  that  injury  cliarged  caused  the  death.  —  It  is 

'Smith    V.   State,    50    Conn.    103  353;  7   Atl.   Rep.  021.     See  State  v. 

(1882).  Jenkins,    14    Rich.     (S.    C)     L.    215 

-  Camp  1-.  State,  25  Ga.  G89  (1858).  (1867)  ;  s.c.  94  Am.  Dec.  132. 

3  Francis    v.    Porter,    7    Ind.    213  *  49  N.  J.  L.  (20  Vr.)  30  (1886)  ; 

(1855);  Titus  v.  State,  49  N.  J.  L.  s.c.  9  Cr.  L.  Mag.  353  ;  7  Atl.  Rep.  621. 
(20  Vr.)  36  (1880)  ;  s.c.  9  Cr.  L.  Mag. 


SEC.  256.]  INDICTMENT    AND   INFORMATION.  289 

indispensably  necessary  that  an  indictment  for  homicide  shall 
directly  aver  that  the  death  of  the  deceased  ensued  in  conse- 
(juence  of  the  act  of  the  defendant  charged ;  ^  but  an  indict- 
ment for  murder,  charging  that  the  defendant,  by  means 
stated,  inflicted  ''  a  mortal  injury,  to  wit,  a  fracture  three 
inches  long  on  the  head  of  "  A.,  "of  which  said  mortal  injury, 
or  fracture,  the  said "  A.  "  then  and  there  died,"  sufficiently 
shows  what  caused  the  death  of  the  deceased.^  The  omission 
of  the  word  "  wound  "  from  the  clause,  "  of  which  said  mortal 
(wound)  he,  the  said  T.,  then  and  there  died,"  has  been  held 
not  to  be  a  ground  for  arrest  of  judgment.'^ 

It  is  said  in  the  case  of  State  v.  Conley"*  that  if,  in  an  in- 
dictiuent  for  murder,  it  is  alleged  that  the  accused,  with  a 
dangerous  weapon,  did  strike  and  beat  the  deceased  and  gave 
him  mortal  wounds,  of  which  wounds  he  afterwards  did  lan- 
guish and  die,  it  is  unnecessary  *to  add  "  by  the  stroke  or 
strokes  aforesaid."  And  it  is  said  that  an  indictment  for 
murder,  where  there  is  a  possible  averment  of  a  stab,  &c.,  with 
a  dirk,  it  sufficiently  appears  that  a  mortal  wound  Avas  given 
thereby  under  the  Avords,  "  giving  one  mortal  wound,"  Scc.^ 

Sec.  256.  Same  —  Averment  of  instrument  or  means 
used.  —  The  indictment  must  set  forth  or  describe  the  AveajDon 
or  other  instrument  or  means  by  Avhich  the  killing  is  charged 
to  have  been  done,  or  the  manner  in  Avhich  such  means  Avere 
used,^  or  should  aver  that  the  means,  instruments,  and  Aveap- 

1  People  r.  Lloyd,  9  Cal.  54  (1858)  ;  5  Gibson  v.  Commonwealth,  2  Va. 
State  V.  Prather,  54   Ind.  63  (1870)  ;     Cas.  Ill  (1817). 

Sliepherd  v.  State,  54  Ind.  25  (1876)  ;  ^  Haney    v.    State,    .34    Ark.    263 

West  1-.  State,  48    Ind.   483   (1874)  ;  (1879)  ;    Edwards    v.  State,   27    Ark. 

State  I'.  Conley,  39   Me.   78    (1854)  ;  493  (1872)  ;  People  v.  Co.v,  9  Cal.  32 

State     V.    Morgan,     86     N.    C.     732  (1858) ;  People  f.  Wallace,  9  Cal.  30 

(1882)  ;    State   i'.  Rinehart,  75  N.  C.  (1858)  ;   State  v.  Taylor,  1  Houst.  Cr. 

58    (1876)  ;    Lutz  v.  Commonwealth,  Cas.    (Del.)     436     (1874)  ;     State    v. 

29  Pa.  St.  441   (1857)  ;  State  v.  Wim-  Townsend,  1    Houst.  Cr.   Cas.    (Del.) 

berly,  3  McC.  (S.  C.)  L.  190  (1825)  ;  337  (1871)  ;  Guedel  r.  People,  43  111. 

Edmondson    v.    State,    41    Tex.   496  226  (1867)  ;  White  v.  Commonwealth, 

(1874);    Gibsim  v.  Commonwealth,  2  9    Bush    (Ky.)   178    (1872);    State  v. 

Va.  Cas.  Ill   (1817).     See    People  r.  Owen,  1  Murph.  (N.  C.)  L.  452  (1810)  ; 

Ybarra,  17  Cal.   166  (1860);    People  .«.c.  4  Am.  Dec.  571 ;   Stale  v.  Jenkins, 

V.  Steventon,  9  Cal.  273  (1858).  14  Rich.    (S.  C.)  L.  215  (1867)  ;  s.c. 

2  West  r.  State,  48  Ind.  483  (1874).  94   Am.   Dec.   132;    Witt   r.  State,  6 

3  State  V.  Rinehart,  75  N.  C.  58  Coldw.  (Tenn.)  5  (1868);  State  r. 
(1876).  Williams,  36  Tex.  352   (1872);  Drye 

«  39  Me.  78  (1854).  v.   State,   14   Tex.  App.   185    (1884). 

19 


290 


HOMICIDE. 


[chap.  xr. 


oils  are  to  the  jurors  unknown ;  ^  but  it  is  now  the  weight 
of  opinion  that  the  proof  need  not  conform  strictly  to  the 
averment,  either  as  to  the  means  used,  or  the  manner  of  using 
them.2     And  where  an  indictment  for  murder  charges,  in  a 


See  Redd  v.  State,  69  Ala.  255  (1881) 
Ilodgers  v.  State,  50  Ala.  102  (1874) 
People  V.  Clioiser,  10  Cal.  3i0  (1858) 
Peterson  v.  State,  47  Ga.  524  (1873) 
Coates  V.  People,  72  111.  303  (1874) 
M^arner  v.  State,  114  Ind.  137  (1887) ; 
s.c.  16  N.  E.  Rep.  189  ;  Dennis  v.  State, 
103  Ind.  142  (1885)  ;  s.c.  7  Cr.  L. 
Mag.  172;  2  N.  E.  Rep.  349;  5  Am. 
Cr.  Rep.  469;  Epps  v.  State,  102  Ind. 
539  (1885)  ;  s.c.  5  Am.  Cr.  Rep.  517; 
1  N.  E.  Rep.  491 ;  Merrick  v.  State, 
63  Ind.  327  (1878)  ;  Veatch  v.  State, 
56  Ind.  584  (1877)  ;  s.c.  26  Am.  Rep. 
44 ;  Meiers  v.  State,  56  Ind.  330 
(1877) ;  Willey  v.  State,  46  Ind.  303 
(1874)  ;  Ward  v.  State,  8  Elackf. 
(Ind.)  101  (1846)  ;  State  v.  Dillon, 
74  Iowa,  653  (1888)  ;  s.c.  38  N.  W. 
Rep.  525;  State  v.  Smith,  32  Me.  369 
(1851)  ;  s.c.  54  Am.  Dec.  578;  Com- 
monwealth V.  Martin,  125  Mass.  394 
(1878)  ;  Commonwealth  v.  Stafford, 
66  Mass.  (12  Cusli.)  619  (1853)  ; 
Commonwealth  v.  Webster,  59  Mass. 
(5  Cush.)  295  (1860)  ;  s.c.  52  Am. 
Dec.  711  ;  Turns  v.  Commonwealth, 
47  Mass.  (6  Mete.)  224  (1843)  ;  State 
V.  Lautenschlager,  22  Minn.  514 
(1876)  ;  State  v.  Bilansky,  3  Minn. 
246  (1859)  ;  Goodwyn  v.  State,  12 
Miss.  (4  Smed.  &  M.)  520  (1845)  ; 
State  V.  MuDaniel,  94  Mo.  301  (1887)  ; 
s.c.  7  S.  W.  Rep.  634  ;  State  v.  Pay- 
ton,  90  Mo.  220  (1886)  ;  s.c.  2  S.  W. 
Rep.  394 ;  Lester  v.  State,  9  Mo.  658 
(1846)  ;  Territory  v.  Young,  5  Mont. 
Tr.  242  (1884)  ;  s.c.  5  Pac.  Rep.  248  ; 
Long  c.  State,  23  Neb.  33  (1888)  ;  s.c. 
36  N.  VV.  Rep.  310  ;  Olive  v.  State,  11 
Neb.  1  (1881)  ;  s.c.  7  N.  W.  Rep.  444; 
State  V.  Burke,  54  N.  II.  92  (1873)  ; 
S.c.  2  Green  Cr.  Rep.  365;  State  v. 
F().\,  25  N.  J.  L.  (1  Dutch.)  566  ( 1856)  ; 
Cox  V.  People,  80  N.  Y.  500  (1880); 
People  V.  Colt,  3  Hill  (N.  Y.)  432 
(1842)  ;  Shay  v.  People,  4  Park.  Cr. 
Cas.  (N,  Y.)  363  (1860) ;  Colt  v.  Peo- 


ple, 1  Park.  Cr.  Cas.  (N.  Y.)  611 
(1842)  ;  State  v.  Gould,  90  N.  C.  658 
(1884)  ;  State  v.  Parker,  65  N.  C.  453 
(1871)  ;  State  v.  Williams,  7  Jones 
(N.  C.)  L.  448  (1860);  s.c.  78  Am. 
Dec.  248  ;  State  v.  Smith,  Phil.  (N.  C.) 
L.  340  (1867)  ;  State  i-.  Freeman,  1 
Speers  (S.  C.)  L.  57  (1842)  ;  Williams 
V.  State,  42  Tex.  392  (1875)  ;  Gonzales 
r.  State,  5  Tex.  App.  584  (1879)  ;  Pur- 
year  V.  Commonwealth,  83  Va.  51 
(1887);  s.c.  1  S.  E.  Rep.  512  ;  Gibson 
V.  Commonwealth,  2  Va.  Cas.  Ill 
(1817)  ;  United  States  v.  Holmes,  1 
Wall.  Jr.  G.  C.  1  (1842).  Compare 
People  V.  Hong  Ah  Duck,  61  Cal.  387 
(1882)  ;  People  v.  Cronin,  34  Cal.  191 
(1867)  ;  People  v.  King,  27  Cal.  507 
(1805);  s.c.  87  Am.  Dec.  95;  People 
V.  Steventon,  9  Cal.  273  (1858)  ;  Dukes 
V.  State,  11  Ind.  557  (1858) ;  State  v. 
Hartley,  34  La.  An.  pt.  1,  147  (1882)  ; 
State  V.  Shay,  30  La.  An.  pt.  1,  114 
(1878)  ;  State  v.  Morrissey,  70  Me. 
401  (1879)  ;  People  v.  Beniis,  51  Mich. 
422  (1883);  s.c.  16  N.  W.  Rep.  94; 
Newcomb  v.  State,  37  Miss.  383  (1859) ; 
State  V.  Kilgore,  70  Mo.  546  (1879); 
State  r.  McLane,  15  Nev.  345  (1880); 
Tenorio  v.  Territory,  1  N.  Mex.  279 
(1859)  ;  Volkavitch  v.  Commonwealth 
(Pa.),  12  Atl.  Rep.  84  (1888);  Goer- 
sen  V.  Commonwealth,  99  Pa.  St.  388 
(1882)  ;  State  v.  Sloan,  65  Wis.  647 
(1886). 

1  Willey  r.  State,  46  Ind.  363  (1874); 
Commonwealth  v.  Martin,  125  Mass. 
394  (1878);  Commonwealth  v.  Web- 
ster, 59  Mass.  (5  Cush.)  295  (1850)  ; 
s.c.  62  Am.  Dec.  711;  Olive  r.  State, 
11  Nev.  1  (1881)  ;  State  v.  Burke,  54 
N.  H.  92  (1873)  ;  s.c.  2  Green  Cr.  Rep. 
365;  Cox  r.  People,  80  N.  Y.  500 
(1880);  Colt  V.  People,  1  Park.  Cr. 
Cas.  (N.  Y.)  611  (1842). 

2  jiogers  r.  State,  50  Ala.  102 
(1874);"^  Stale  v.  Smith,  32  Me.  369 
(1851);  s.c.54Am.  Dec.  578;  Stater. 


SEC.  257.]  INDICTMENT    AND    INFORMATION.  291 

single  count,  th;it  the  mortal  injuries  were  inflicted  by  differ- 
ent means  or  instruments,  as  by  shooting,  striking,  and  burn- 
ing, the  prosecution  cannot  be  forced  to  elect  upon  which  of 
tlieni  a  conviction  will  be  sought.^  In  the  case  of  Rogers  v. 
State  ^  the  indictment  alleged  that  the  prisoner  killed  the 
deceased  "  by  cutting  his  head  off.  with  a  knife,  or  with  an 
axe,"  and  the  proof  was,  that  the  deceased  came  to  his  death 
by  some  sort  of  cutting  about  the  neck,  and  a  charge  to  the 
jury  that  if  they  were  convinced,  beyond  a  reasonable  doubt, 
that  the  deceased  "came  to  his  death  by  the  hands  of  the 
defendant,  it  matters  not  what  sort  of  weapon  he  was  killed 
with,  or  how  the  weapon  was  used,"  was  held  to  be  correct. 

It  need  not  be  averred  that  the  weapon  was  deadly  or 
dan.'^erons,  or  was  one  recognized  by  the  law  to  be  deadly  or 
dangerous,^  except  in  those  cases  where  the  defendant  is 
charged  with  murder  in  a  special  degree  under  a  statute 
which  uses  those  words  in  defining  the  crime,  in  which  case 
the  words  of  the  statute  must  be  followed.**  Where  the  in- 
dictment contains  an  averment  of  malice  aforethought,  it 
is  not  necessary  to  state  that  the  wound  was  not  inflicted 
while  deceased  was  undergoing  a  surgical  operation ;  ^  and  it 
is  not  necessary  to  mention  a  disease  which  would  soon  have 
practically  caused  the  death  of  the  deceased.*^ 

Sec.  257.  Same  —  Alleging  weapon  in  defendant's  hand. 

—  While  it  is  usual  and  proper  to  allege  in  an  indictment  for 
murder  that  the  instrument  or  Aveapon  with  Avhich  the  homi- 
cide was  committed  was  in  the  defendant's  hand  at  the  time 
of  the  killing,  yet  it  is  not  necessary  to  the  validity  of  the  in- 
dictment that  such  an  allegation  be  made,  for  the  reason  that 
such  allegation  is  not  necessary  to  a  full  description  of  the 
crime ;  neither  is  it  necessary  in  order  to  inform  the  defend- 

Lautenschlager,  22  Minn.  514  (1876);  i  Gonzales    r.   State,    5   Tex.  App. 

State  V.  Fox,  25  N.  J.  L.  (1  Dutcli.)  584  (1879). 

566    (1856);    People   v.   Colt,   .3    Hill  2  50  Ala.  102  (1874). 

(N.  Y.)  432   (1842)  ;  State  v.  Gould,  3  State   r.   McDaniel,    94   Mo.  301 

90  N.  C.  658  (1884).     Compare  Giiedel  (1887)  ;  s.c.  7  S.  W.  Rep.  634. 

V.  People,  43  111.  226  (1867)  ;  State  v.  ■*  Tenorio  v.   Territory,   1   N.  Mex. 

Taylor,  1   Iloust.  Cr.  Gas.  (Del.)  4-36  270  (1859). 

(1874) ;   State  v.  Townsend,  1   Houst.  ^  Merrick    v.    State,    63    Ind.   327 

Cr.  Gas.  (Del.)   337   (1871);   State  v.  (1878). 

Kilsrore,  70  Mo.  546   (1879)  ;  Witt  v.  '•  Commonwealth  v.  Fox,  73  Mass. 

State,  0  Coldw.  (Tenn.)  5  (1868).  (7  Gray)  585  (1856). 


292  HOMICIDE.  [chap.  XI. 

ant  of  the  particulars  of  tlie  charge  which  he  is  to  meet ;  and, 
if  inserted,  need  not  be  proved.^  It  not  being  necessary  to 
allege  tliat  the  defendant  held  the  instrument  or  weapon  in 
his  hand  at  tlie  time  of  the  killing,  it  follows  naturally  that 
should  the  indictment  attempt  to  set  out  this  fact  and  do  so 
imperfectly,  this  will  not  affect  the  validity  of  the  indictment. 
Thus  in  Ward  v.  State  ^  an  indictment  for  murder  alleged 
that  the  defendant,  with  a  certain  gun  which  he  in  botli 
hands  then  and  there  held,  &c.,  feloniously  did  shoot,  «&;c. 
And  the  court  held  that  the  omission  of  the  word  "  his," 
before  the  word  "hands,"  was  no  objection  to  the  indictment. 
And  in  Shay  v.  People  ^  the  indictment  charged  "  that  the 
said  S., — a  certain  knife  which  the  said  S.  in  his  right  hand 
then,  i&c,  then  and  there  wilfully,  &c.,  did  beat,  stab,  &c., 
giving  unto  the  said  J.  L.  then  and  there  with  the  knife 
aforesaid  in  and  upon  the  forehead  of  him,  the  said  J.  L.,  one 
mortal  wound,"  »&c.,  &c.  On  error  it  was  held  that  the 
clerical  omission  of  the  word  "  with "  before  the  words  "  a 
certain  knife,"  did  not  vitiate  the  indictment,  the  offence 
being  sufficiently  charged  in  the  other  clauses. 

Sec.  258.    Same  —  Charging  killing  witli  gun  or  pistol. — 

In  charging  murder  with  a  gun  or  pistol  the  manner  of  killing 
must  be  set  out.  Thus  an  indictment  for  murder  which 
alleged  that  the  prisoner  did  make  an  assault  with  a  gun, 
&c.,  charged  with  gunpowder  and  two  leaden  bullets,  which 
said  gun  he  "  did  shoot  off  and  discharge,"  sufficiently  avers 
that  the  gun  was  shot  off,  and  the  contents  discharged.* 
But  an  indictment  which  cliarges  that  the  defendant  "  did 
unlawfully  .  .  .  kill  and  murder  J.  B.,  with  a  gun  loaded 
with  gunpowder  and  leaden  balls,  ami  held  in  the  luind"  of 
the  said  defendant,  is  fatally  defective  in  failing  to  indicate 
the  manner  of  killing.^ 

1  Dennis    v.    State,     lOO    Iiid.    142  ed.)  92;  1   Arcli.   Cr.   PI.   (10th   ed.) 

(1885);   s.c.   5   Am.   Cr.    Kep.  409;  7  407. 

Cr.  L.  Map.  172;   2  N.  E.  Hep.  849;  '^  8  Rlackf.  (Ind.)  101  (1840). 

Dukes  V.  State,  11    Ind.  5.J7   (1858);  M    p^j-k.    Cr.    Cas.    (N.    Y.)    3G3 

Connnonwealtli  r.  Costley,   118  Ma.«s.  (1800). 

1  (1875) ;  'IVrritnry  r.  Youns,  5  Mont.  *  State  v.  Freeman,  1  Speers  (S.  C.) 

Tr.  242  (1884)  ;  s.c.  5  Pac.  Hep.   248.  L.  57  (1842). 

See  2   Hawk    P.  C,  p.  28,  §§70-84;  •''' Ilaney    v.    State,    o4    Ark.    203 

1  East  P.  C.  341;  1  Stark  Cr.  PI.  (2d  (1879). 


SEC.  260.]  INDICTMENT   AND    INFORMATION.  293 

It  is  not  necessary  to  aver  in  so  many  words,  that  the 
pistol  used  was  loaded  with  powder  and  ball,  or  that  the  fatal 
wound  was  intlicted  with  a  ball ;  ^  an  indictment  describing 
the  weapon  as  a  "  loaded  pistol  "  is  sufficient.^  And  an  alle- 
gation, in  an  indictment  for  murder,  that  the  deceased  came 
to  his  death  by  "  one  leaden  bullet  discharged  from  said  shot- 
gun," &c.,  is  supported  by  evidence  that  he  came  to  his  death 
by  means  of  the  discharge,  by  the  accused,  of  a  shot-gun 
loaded  with  buck  shot.^  But  under  an  indictment  charging 
murder,  committed  by  shooting  from  a  gun  by  means  of 
powder  and  shot,  the  people  cannot  be  permitted  to  prove  a 
murder  committed  by  striking  the  deceased  with  a  gun  upon 
the  head."*  And  where  a  murder  is  charged  to  have  been 
committed  by  shooting  with  a  gun,  the  prosecution  cannot 
be  permitted  to  show  that  the  act  was  done  by  choking  with 
the  hands.^ 

Sec.  259.  Same  —  Charging  killing  with  bludg^eon  or 
stick.  —  In  an  indictment  for  murder  committed  with  a  stick 
or  bludgeon  it  is  sufficient  to  describe  the  weapon  as  a  "  cer- 
tain wooden  stick  of  no  value,"  without  stating  its  length  or 
thickness,  so  as  to  show  that  it  was  a  deadly  weapon. ^  Where 
the  indictment  charged  the  murder  to  have  been  committed 
with  a  "  bludgeon,"  and  the  testimony  left  it  in  doubt  as  to 
Avhether  death  was  j)roduced  by  a  blow  with  a  bolt  or  club, 
a  charge  that  if  death  was  produced  by  a  blow  with  a  blud- 
geon, bolt,  or  club,  would  be  sufficient  as  to  the  manner  of 
producing  death,  is  correct.'' 

Sec.  260.  Same  —  Chargingr  killing  by  strangulation.  — 
An  indictment  for  murder  which  charges  that  the  defendant 
unlawfully  and  wiili  malice  aforethought  did  kill  the  de- 
ceased "  by  strangulation,  in  this,  to  wit :  that  he  choked  her 
to  death,"  is  thought  to  be  sufficiently  definite  as  to  the  de- 
scription of  the  means  employed  in  perpetrating  the  killing.^ 

47    Ga.    524  5  Long  v.  State,  25  Neb.  3.3  (1888); 

s.c.  86  N.  W.  Uep.  310. 
lO^Cal.    310  «  State   v.  Smitli,  Phil.  (N.  C.)  L. 

340  (1867). 
12    Miss.    (4  '  Lonsi  r.  State,  23  Neb.  33  (1888); 

s.c.  36  N.  W.  Rep.  310. 
43    III.    226  »  Kedd  v.  State,  69  Ala.  255  (1881); 

s.c.  68  Ala.  492.     The  indictment  in 


^  Peterson 

V.    State, 

(1873). 

-  People    V. 

Choiser, 

(1858). 

3  Goodwyn 

V.    State, 

Snied.  &  M.)  520  (1845) 

*  Guedel    v 

.    People, 

(1867). 

294 


HOMICIDE. 


[chap.  XI. 


Sec.  .2G1.  Same  —  Charging  killing  by  poisoning —  Quan- 
tity used.  —  An  indictment  charging  murder  by  administering 
arsenic,  or  other  known  poison,  need  not  state  the  quantity 
used.^  Under  some  statutes  a  charge  of  a  wilful  and  premedi- 
tated killing,  by  giving  poison,  is  sufficient,  without  charging 
that  the  poison  was  taken  into  the  stomach  of  the  deceased, 
whereof  he,  at  a  specified  time,  died.^ 

Sec.  262.  Same  —  Description  of  wound.  —  It  is  not  nec- 
essary to  designate  the  part  of  the  body  of  the  deceased  upon 
which  the  alleged  mortal  blow  was  inflicted ;  ^  and  where  it 
is  designated,  the  proof  need  not  strictly  conform  to  the  aver- 
ment, it  being  competent  to  show  that  the  wound  was  in- 
flicted upon  any  part  of  the  body  of  the  deceased.*  Neither 
is  it  necessary  to  state  the  dimensions  of  the  wound  or 
bruise.^ 


this  case  was  under  the  Alabama  Code 
of  1876,  and  conforms  substantially 
to  the  form  prescribed  thereby.  See 
Ala.  Code,  187G,  p.  991,  form  2. 

1  Puryear  i".  Commonwealth,  83 
Va.  51  (1887);  s.c.  1  S.  E.  Kep.  512. 

2  Bilansky  v.  State,  3  Minn.  427 
(1859). 

3  People  I'.  Judd,  10  Cal.  313  (1858); 
People  V.  Steventon,  9  Cal.  273  (1858); 
Jones  V.  State,  35  Ind.  122  (1871); 
Whelchell  r.  State,  23  Ind.  89  (18(34); 
Cordell  )•.  State,  22  Ind.  1  (1804); 
Dukes  V.  State,  11  Ind.  557  (1858);  s.c. 
71  Am.  Dec.  370;  State  v.  Yordi,  30 
Kan.  221  (1883);  s.c.  2  Pac.  Hep. 
161  ;  State  v.  Sanders,  76  Mo.  35 
(1882);  State  v.  Blan,  69  Mo.  317 
(1879) ;  State  v.  Edmundson,  64  Mo. 
398  (1877);  State  v.  Moses,  2  Dev. 
(N.  C.)  L.  452  (1830);  Sanchez  v. 
People,  22  N.  Y.  147  (1860);  s.c. 
4  Park.  Cr.  Cas.  (N.  Y.)  535; 
Alexander  v.  State,  3  Heisk.  (Tenn.) 
475  (1872);  s.c.  1  Green  Cr.  Kep. 
701 ;  Wilkerson  v.  State,  2  Tex.  App. 
255  (1878).  See  People  v.  Aro,  6 
Cal.  207  (1856)  ;  s.c.  65  Am.  Dec. 
503  ;  Bryan  v.  State,  19  Fla.  864 
(1883);  Dias  v.  State,  7  Blackf.  (Ind.) 
20  (1843);  s.c.  39  Am.  Dec.  448; 
Wise  V.  State,  2  Kan.  419  (1864)  ;  s.c. 
85  Am.  Dec.  595 ;   Commonwealth  v. 


Woodward,    102    Mass.   155    (1869) 
State  V.  Waller,  88  Mo.  402   (1885) 
State  V.  Ramsey,  82  Mo.  133  (1884) 
State  V.  Henson,  81  Mo.  384   (1884) 
State  V.  Jones,  20  Mo.  58  (1854);  State 
V.  Carter,   N.    C.    Conf.   210    (1801)  ; 
State  V.  Owen,  1   Murph.  (N.  C.)  452 
(1810)  ;   s.c.   4  Am.  Dec.  571 ;    State 
V.  Jenkins,  14    Rich.   (S.   C.)    L.  215 
(1867)  ;  s.c.  94  Am.  Dec.  132;  Nelson 
V.  State,  1  Tex.  App.  41  (1877). 

*  Bryan  r.  State,  19  Fla.  864  (1883); 
State  ;;.  Waller,  88  Mo.  402  (1885)  ; 
State  V.  Edmundson,  64  Mo.  398 
(1877)  ;  State  v.  Jenkins,  14  Rich. 
(S.  C.)  L.  215  (1867);  s.c.  94  Am. 
Dec.  132  ;  Nelson  v.  State,  1  Tex. 
App.  41  (1877).  Compare  State  v. 
Hoyt,  13  Minn.  132  (1868). 

5  People  V.  Steventon,  9  Cal.  273 
(1858)  ;  Stone  v.  People,  3  111.  (2 
Scam.)  326  (1840)  ;  Dias  v.  State,  7 
Blackf.  (Ind.)  20  (1843);  s.c.  39  Am. 
Dec.  448;  West  v.  State,  48  Ind.  483 
(1874)  ;  Jones  v.  State,  35  Ind.  122 
(1871)  ;  Dukes  v.  State,  11  Ind.  557 
(1858);  s.c.  71  Am.  Dec.  370;  Dillon 
f.  State,  9  Ind.  408  (1857)  ;  State  v. 
Conley,  39  Me.  78  (1854)  ;  Common- 
wealth V.  Chapman,  65  Mass.  (11 
Cush.)  422  (1853)  ;  State  r.  Sanders, 
76  Mo.  35  (1882)  ;  State  r.  Blan,  69 
Mo.   317    (1879)  ;    State   v.    Oa-en,    1 


SEC.  262.]  INDICTMENT   AND   INFORMATION.  295 

At  common  law  it  was  necessary  to  state,  in  an  indictment 
for  murder,  the  part  of  the  body  on  which  the  blow  was  in- 
flicted,^ and  some  cases  go  to  the  extent  of  holding  that  the 
indictment  must  charge  the  dimensions  of  the  wound ;  ^  but 
the  better  opinion  now  appears  to  be  that  such  is  not  neccs- 
sar}',  for  the  very  sufficient  reason  that  it  is  not  requisite  to 
inform  the  defendant  of  the  charge  he  is  to  meet.  Thus  it 
was  said,  in  the  case  of  State  v.  Crank,^  that  a  sufficient  de- 
scription of  the  injury  from  which  death  arose  is  afforded  by 
the  phrase  "  one  mortal  bruise  " ;  nor  is  it  necessary,  if  the 
injury  be  on  the  head,  that  the  particular  portion  of  the  head 
be  mentioned  in  the  indictment.  And  in  Commonwealth  v. 
Woodward  *  an  indictment  for  murder  which  averred  that  the 
death  ensued  from  "  one  mortal  wound "  given  on  the  left 
side  of  the  head  of  the  deceased  by  a  stroke  with  a  whip- 
stock,  was  held  sufficient  without  a  more  specific  description  of 
the  wound.  The  court  say :  "  The  only  question  argued,  upon 
the  motion  to  quash  the  indictment,  relates  to  the  sufficiency 
of  the  description  of  the  wound  from  which  death  is  alleged 
to  have  ensued.  In  the  first  count,  it  is  described  only  as 
'  one  mortal  wound '  in  and  upon  the  left  side  of  the  head. 
The  defendant's  counsel  argues  that  this  is  not  sufficient, 
because  it  is  not  made  to  appear  that  the  wound  was  not  an 
incised  wound ;  and  if  it  was  an  incised  Avound,  it  should 
liave  been  described  by  its  length,  breadth,  and  depth.  In 
the  case  of  Commonwealth  v.  Chapman,^  relied  upon  to  sus- 
tain this  position,  the  indictment,  which  contained  no  other 
description  of  the  wound  than  in  the  present  case,  was  held 
to  be  sufficient.  The  report  states  that  '  the  court  distin- 
guished this  from  an  incised  wound,  because  the  indictment 
alleged  that  the  defendant  "  did  strike  and  bruise  "  the  de- 
ceased.' But  that  allegation,  although  it  preceded,  did  not 
form  any  part  of  tlie  description  of  the  wound  resulting  from 

Murph.  (X.  C.)  L.  452    (1810)  ;   s.c.  2  state  v.  Owen,  1  Murpli.   (N.  C) 

4  Am.  Dec.  571;  Smith  v.   State,  43  L.  452  (1810)  ;  s.c.  4  Am.  Dec' 571. 
Tex.  643  (1875) ;  Gelirke  v.  State,  13  3  2  Bail.  (S.  C.)  06  (1831)  ;  s.c.  23 

Tex.  568  (1855);  Lazier  v.  Comtnon-  Am.  Dec.  117. 

wealth,  10  Gratt.   (Va.)  708   (1853)  ;  *  102    Mass.    155    (1869).      See   to 

Turner's  Case,  1  Lew.  C.  C.  177  (1830).  same  effect,  Commonwealtli  v.  McAfee, 

1  Jones  V.  State,  35  Ind.  122  (1871);  108  Mass.  458  (1871). 
Cordell  v.  State,  22  Ind.  5  (1864).  5  65  Mass.  (11  Cush.)  422  (1853). 


£90  HOMICIDE.  [chap.  XI. 

the  blow,  which  was  alleged  to  have  been  given  with  an  axe. 
If  the  description  of  the  wound  in  this  count  may  be  aided  in 
the  same  way,  by  reference  back  to  the  allegations  it  contains, 
which  are  descriptive  of  the  assault,  we  think  it  is  fairly  to 
be  inferred  that  the  wound,  given  upon  the  head  with  a  whip- 
stock,  must  have  been  a  bruise  or  contusion,  and  not  an  in- 
cised wound,  and  so,  within  the  principle  of  that  case,  suffi- 
ciently described. 

"  But  if  this  were  not  a  sufficient  answer,  and  assuming,  as 
is  suggested  in  Commonwealth  v.  Chapman,^  that,  '  in  the 
case  of  a  simple  incised  wound,  the  authorities  would  support 
the  position  that  a  description' is  necessary,'  we  are  of  opinion 
that  the  tendency  of  modern  jurisprudence  and  legislation  is 
such  as  to  justify,  if  not  to  require,  a  departure  from  the  old 
rule  of  pleading,  in  a  matter  which  is,  practically,  so  nearly 
one  of  mere  form."  The  case  of  Commonwealth  v.  Chapman  ^ 
cannot  fairly  be  added  to  the  authorities  in  favor  of  the  sup- 
posed rule  ;  for  it  is  manifest,  from  the  manner  of  the  decision 
there,  that  the  court  did  not  intend  to  strengthen  the  rule  by 
the  weight  of  its  sanction.  Several  English  cases  question, 
'if  they  do  not  deny,  the  existence  of  the  rule,  both  upon  the 
gi'ound  of  authority  and  of  good  sense.^  We  fail  to  discover 
any  sound  principle,  on  which  tire  rule  can  stand,  to  justify 
its  perpetuation.  We  do  not  suppose  that,  in  the  case  of 
Commonwealth  v.  Chapman,^  the  indictment  would  have 
failed  for  a  variance,  if  the  proof  had  been  of  an  incised 
wound.  Where  the  blow  was  with  a  blunt  instrument,  which 
broke  through  the  skin,  the  wound  would  be  properly  de- 
scribed either  as  a  bruise  or  an  incised  wound.  Under  the 
English  statute,^  against  injuries  with  intent  to  murder,  maim, 
&c.,  the  proof  of  a  "  wounding "  was  required  to  be  of  an 
incision  through  the  skin.* 

A  particular  description  of  the  wound  cannot  be  necessary 
to  enable  the  defendant  to  know  for  what  injury  he  is  called 
upon  to  answer.  If  required  for  this  purpose,  it  would  be 
valueless,  because  the  allegation  need  not  be  accurate,  in  cor- 

1  65  Mass.  (11  Cush.)  422  (1858).       v.  Tmiilinson,  0  Car.  &  P.  370  (1834)  ; 

2  Rex  V.  Mosley,  1  R.  &  M.  C.  C.     s.c.  25  Eng.  C.  L.  479. 
97  (1825)  ;  s.c.  1  Lew.  C.  C.  189;  Rex  «  St.  9  Geo.  IV.,  c.  31. 

4  Rose.  Grim.  Ev.  (Gtlied.)  890. 


SEC.  :i62.]  INDICTMENT    AND    INFORMATION.  207 

respoiidence  with  the  proof.  The  statement  of  the  general 
nature  and  locality  of  the  wound,  and  the  instruinent  or 
means  by  which  it  was  inflicted,  are  all  that  can  be  required 
for  this  purpose. 1 

The  reason  most  frequently  assigned  for  the  requirement 
is,  that  it  is  necessary  in  order  that  it  may  be  made  to  appear 
from  the  indictment  that  the  wound  was  sufficient  to  cause 
death.  If  this  is  not  essential  in  case  of  a  bruise  or  contusion, 
there  is  no  good  reason  why  it  should  be  so  in  case  of  an  in- 
cised wound.  The  indictment  must  allege  it  to  be  a  mortal 
wound,  and  that  death  ensued  therefrom;  and  if  the  testi- 
mony sustains  those  allegations,  tlie  homicide  is  proved,  how- 
ever limited  the  extent  of  the  incision.  Notwithstandingf  the 
frequent  repetition  of  this  reason  for  the  rule,  we  are  aware 
of  no  authority  which  has  ever  attempted  to  define  the  least 
extent  in  length,  breadth,  or  depth  of  incision  which  would 
be  sufficient,  and  which  it  is  necessary  to  allege,  in  order  to 
make  it  appear  that  the  wound  was  sufficient  to  cause  death, 
or  to  define  the  principle  upon  which  the  court  can  determine 
upon  its  sufficiency  as  a  question  of  law.^ 

A  variance  between  the  wound  as  laid  in  the  indictment 
and  as  shown  by  the  'evidence  is  fatal  to  the  indictment  in 
those  cases  where  the  variance  is  as  to  a  vital  matter.  But 
where  the  indictment  charged  a  murder  to  have  been  com-, 
mitted  by  shooting  in  the  left  breast,  and  it  appeared  that  three 
shots  were  fired,  one  immediately  after  the  other;  that  the 
wound  inflicted  by  either  would  have  been  mortal ;  but  that 
death  ensued  at  once  from  the  shot  that  took  effect  in  the 
head,  it  was  held  that  the  variance  was  immaterial.'^ 

Repugnancy  in  an  indictment,  where  the  repugnancy  is  in 
a  material  part  thereto,  is  fatal.  Therefore  an  indictment 
for  murder,  which  charges  that  the  accused  struck  the  de- 
ceased with  an  axe  on  the  left  side  of  the  head  and  over  the 
left  temple,  giving  to  him  then  and  there  with  said  axe,  on 
the  right  side  of  the  head,  and  over  the  right  temple,  a  mortal 
wound,  is  said  to  be  bad.^ 

An   allegation  in  an   indictment  for  murder  in   the   first 

1  See  Commonwealth  v.  Woodard,  3  pjaz  ,..  State,  7  Blaekf.  (Ind.)  20 

102  Mass.  155  (1809).  (1843)  ;  s.c.  3t)  Am.  Deo.  US. 

'  Bryan  v.  State,  19  Fla.  864  (1883). 


298 


HOMICIDE. 


[chap.  XI. 


degree  that  defendant  "did  strike,  stab,  and  thrust  in  and 
upon  the  right  side  of  him,  the  said  F.,  and  also  in  and  upon 
the  back  near  the  left  shoulder  of  the  body,  giving  to  the  said 
F.,  then  and  there,  with  the  knife  aforesaid,  in  and  upon  the 
rio-ht  side,  and  also  upon  the  back  near  the  left  shoulder  of 
liim,  the  said  F.,  one  mortal  wound,"  sufficiently  locates  the 
wound,  and  will  not  be  bad  for  repugnancy .^  And  on  aver- 
ments in  an  indictment  for  murder  that  the  striking  and 
wounding  were  at  the  heart,  and  that  the  mortal  wound  so 
given  was  through  the  body,  has  been  said  not  to  be  repug- 
nant.2 

Sec.  263.  Time  of  act  causing-  death.  —  The  indictment 
must  set  forth  the  time  of  the  alleged  acts  causing  the  death  ;3 
but  where  it  alleges  the  time  of  making  the  assault,  the  aver- 
ment need  not  be  repeated  with  specific  reference  to  the  mortal 
blow.^  But  a  clerical  error  in  stating  the  time,  which  is 
clearly  apparent,  and  not  prejudicial  to  the  defendant,  will  not 
be  ground  for  an  arrest  of  judgment.^     Thus  under  a  statute 

Ramsey,   82    Mo.    133 


1  State 
(1884). 

2  State  V.  Henson,  81  Mo.  384(1884). 

3  See  People  )-.  Cox,  9  Cal.  32 
(1858)  ;  People  v.  Wallace,  9  Cal.  30 
(1858);  Thomas  v.  State,  71    Ga.  44 

.(1883);  Welch  v.  State,  104  Ind.  347 
(1885);  State  v.  Kane,  33  La.  An. 
1269  (1881)  ;  State  v.  Polite,  33  La. 
An.  1016  (1881)  ;  State  v.  Hobbs,  33 
La.  An.  226  (1881)  ;  State  v.  Conley, 
39  Me.  78  (1854)  ;  Commonwealth  v. 
Barker,  66  Mass.  (12  Cush.)  186 
(1853)  ;  State  v.  Ryan,  13  Minn.  371 
(1868)  ;  Woodsides  v.  State,  3  Miss. 
(2  How.)  655  (1837);  State  v.  Mc- 
Daniel,  94  Mo.  301  (1887)  ;  State  v. 
Smidheimer,  93  Mo.  311  (1887)  ;  s.c. 
6  S.  W.  Rop.  52;  State  v.  Eaton,  75 
Mo.  586  (1882)  ;  State  v.  Ward,  74 
Mo.  253  (1881);  State  v.  Testerman, 
68  Mo.  408  (1878)  ;  State  v.  Mayfield, 
66  Mo.  125  (1877)  ;  State  v.  Sides,  64 
Mo.  385  (1877);  State  v.  Taylor,  21 
Mo.  477  (1855)  ;  Lester  v.  State,  9  Mo. 
658  (1846)  ;  State  v.  Huff,  11  Nev.  17 
(1876)  ;  State  v.  Ilaney,  67  N.  C.  467 
(1872);  State  v.  Shepherd,  8  Ired. 
(N.  C.)  L.  195  (1847)  ;  State  v.  Baker, 


1  Jones  (N.  C.)  L.  267  (1854)  ;  State 
V.  Cherry,  3  Murph.  (N.  C.)  L.  7 
(1819)  ;  State  v.  Stewart,  26  S.  C.  125 
(1886) ;  State  v.  Huggins,  12  Rich. 
(S.  C.)  L.  402  (18(50)  ;  Edmondson  v. 
State,  41  Tex.  496  (1874);  O'Connell 
V.  State,  18  Tex.  343  (1857);  Hardin 
V.  State,  4  Tex.  App.  355  (1879)  ;  Liv- 
ingston V.  Commonwealth,  14  Gratt. 
(Va.)  592  (1857)  ;  Lazier?-.  Common- 
wealth, 10  Gratt.  (Va.)  708  (1853) ; 
Commonwealth  v.  Ailstock,  3  Gratt. 
(Va.)  650  (1846).  Compare  People  v. 
Aro,  6  Cal.  207  (1856)  ;  s.c.  65  Am. 
Dec.  503;  People  v.  Kelly,  6  Cal.  210 
(1856)  ;  State  v.  Williams,  30  La.  An. 
pt.  II.,  843  (1878). 

■•  Commonwealth  v.  Barker,  66 
Mass.  (12  Cush.)  186  (1853)  ;  State  v. 
Cherry,  3  Murph.  (N.  C.)  L.  7  (1819). 
See  Welch  v.  State,  104  Ind.  347 
(1885)  ;  s.c.  3  N.  E.  Rep.  850;  Wood- 
sides  V.  State,  3  Miss.  (2  How.)  655 
(1837)  ;  State  r.  Taylor,  21  Mo.  477 
(1855)  ;  State  v.  Stewart,  26  S.  C.  125 
(1886);  State  v.  Huggins,  12  Rich. 
(S.  C.)  L.  402  (1860); 'S.c.  1  S.  E. 
Rep.  468. 

5  State   V.   McDanicl,   94   Mo.  301 


SEC.  263.]  INDICTMENT    AND    INFORMATION.  290 

providing  that  no  indictment  shall  be  deemed  invalid,  or 
judgment  thereon  arrested,  for  stating  the  offence  to  have 
been  committed  on  a  day  subsequent  to  the  finding  of  the  in- 
dictment, an  indictment  found  in  May,  1886,  charged  that  the 
defendant  assaulted  and  cut  the  deceased  on  December  25, 
1886,  and  that  the  deceased  died  on  December  25,  1885 ;  and 
the  court  held  that  as  it  was  clear  that  the  insertion  of  1886  for 
1885  was  a  clerical  error,  judgment  on  it  would  not  be  arrested.^ 
In  Commonwealth  v.  Ailstock^  an  indictment  for  murder 
stated  that  the  mortal  wound  was  inflicted  on  the  7th  of  No- 
vember, 1845,  and  that  the  deceased  languished  on  until  the  8th 
of  November  in  the  j^ear  aforesaid,  and  then  said,  "  on  which 
8th  day  of  May,  in  the  year  aforesaid,  the  deceased  died." 
The  court  held  that  the  insertion  of  May  for  November  was 
a  mistake,  apparent  on  the  face  of  the  indictment,  and  Avould 
not  exclude  proof  of  the  death  subsequent  to  the  7th  of 
November,  or  be  cause  for  arresting  the  judgment. 

It  is  a  general  rule  that  the  proof  need  not  strictly  con- 
form to  the  averments  in  the  indictment.^  Thus  where  a 
conviction  for  murder  was  taken  to  the  supreme  court,  and 
the  sole  ground  relied  upon  for  the  reversal  of  the  sentence 
was  that  the  indictment  charged  the  crime  to  have  been  com- 
mitted March  19,  1880,  while  the  evidence  showed  it  to 
have  been  committed  March  19,  1881,  it  was  held  that  the 
court  had  no  jurisdiction  to  review  the  evidence,  as  this  would 
be  trying  the  case  as  to  the  facts  of  the  appeal,  but  that,  in 
any  event,  the  variance  was  immaterial.'*  And  where  an  in- 
dictment for  murder  alleged  that  the  injury  was  inflicted  on 
the  14th  of  March,  1856,  and  that  the  deceased  died  on  the 
19th  of  the  same  month,  and  the  government  proved  that 
the  injury  was  inflicted  on  the  8th  of  March,  and  that  the 
death  ensued  on  the  loth  of  the  same  month,  the  variance 
was  held  to  be  immaterial.^ 


(1887);  s.c.  7  S.  W.  Rep.  634 ;  Com-  1269   (1881);  State  v.  Polite,  33  La 

monwealth  i'.  Ailstock,  3  Gratt.  (Va.)  An.  1016  (1881) ;  Livingston  v.  Com- 

650  (1846).  monwealtii,  14  Gratt.  (Va.)  592  (1857). 

1  State    ;;.   McDaniel,  94    Mo.   301  *  State  v.  Polite,  33  La.  An.  1016 

(1887)  ;  s.c.  7  S.  W.  Rep.  634.  (1881). 

23  Gratt.  (Va.)  650  (1846).  ^  Livingston  v.  Commonwealth,  14 

3  O'Connell   v.  State,  18    Tex.  343  Gratt.  (Va.)  592  (1857). 
(1857).     See  State  v.  Kane,  33  La  An. 


800  HOMICIDE.  [chap.  XI. 

Sec.  264.  Time  of  the  death.  -^-  The  date  of  death  shoukl 
be  set  forth  as  well  as  the  date  of  the  killing,  in  order  to  show 
that  the  death  took  place  within  a  year  and  a  day  from  the  com- 
mission of  the  act  causing  it.^  An  averment  that  the  defendant 
killed  the  deceased  upon  a  certain  day  sufficiently  implies  that 
the  latter  died  on  the  day  named  ;  ^  and  so  does  a  statement, 
coming  after  the  averment  of  the  time  of  the  act  causing  the 
death,  that  the  deceased  "  did  then  and  there  die  " ;  or  "  did  then 
and  there  instantly  die  "  ;  ^  or  that  he  "  languished,  and  lan- 
guishing, immediately  did  die."*  But  an  averment  that  "of 
said  mortal  wounds"  the  deceased  "did  immediately  languish, 
and  languishing,  did  die,"  fails  to  show  how  long  after  the 
mortal  injury  the  death  occurred,  and,  therefore,  renders  the 
indictment  fatally  defective.^ 

The  common  law  requirement  of  an  allegation  that  death 
resulted  from  the  injury  within  a  year  and  a  day  has  been 
said  to  be  sufficiently  complied  with  by  the  words,  "  giving 
the  said  W.  then  and  there  two  mortal  wounds,  of  which 
mortal  wounds  so  given  as  aforesaid,  the  said  W.  did  instantly 
die,"  the  words  "so,"  &c.,  obviating  any  need  of  repeating 
"  then  and  there  "  before  "  instantly."  ^ 

An  indictment  of  murder,  charging  the  infliction  of  a 
wound  on  a  certain  day,  and  that  the  deceased  "  did  then 

1  People  V.  Cox,  9  Cal.  32   (1858)  ;  the  9th  of  December,  of  which  wound, 

People  r.  Wallace,  9  Cal.  30  (1858);  she,  on    the    said    14th  of  December, 

People  y.  Con  ley,  39  Me.  78  (1854);  died.      Held,    that    the    word    "said" 

State    ('.    Sundheimer,    93    Mo.    311  was  a  siirplusa!j;e,  but  that  it  did  not 

(1887)  ;    State    v.    Mayfield,   (>()    Mo,  affect  the  indictment.     Lazier  v.  Coni- 

125  (1877);    Lester   ?;.'  State,    9    Mo.  monwealth,  10  Gratt.  (Va.)  708  (1853). 

658    (1846);  State    r.    Huff,   11    Nev.  2  Thomas     v.     State,    71     Ga.     44 

17    (1870)  ;    Edmondson    r.   State,  41  (1883)  ;  State  v.  Ryan,  13  Minn.  371 

Tex.  496  (1874).    See  Thomas  r.  State,  (1868).      Compare    State    v.    Huff,    11 

71  Ga.  44  (1883);  State  v.   Ryan,  13  Nev.  17  (1876). 

Minn.  376  (1868) ;  State  v.  Ward,  74  3  Woodsides  v.  State,    3    Miss.    (2 

Mo.  253  (1881)  ;    State    v.  Testerman,  Hnw.)  655  (1837)  ;  State  v.  Ward,  74 

68    Mo.    408    (1878)  ;    State  r.  Sides,  Mo.  253   (1881)  ;   State  v.  Taylor,  21 

64  Mo.  385  (1877)  ;    State  i'.   Haney,  Mo.  477  (1855)  ;  State  v.   Haney,  67 

67  N.  C.  467   (1872)  ;  State  v.  Raker,  N.  C.    467  (1872)  ;  State  v.  Raker,   1 

1  .Jones  (N.  C.)  L.  267  (1854)  ;  Hardin  Jones  (N.  C.)  L.  267  (1854)  ;  State  r. 

V.    State,   4    Tex.     App.    355    (1879);  Hu{j<ri,is,  12  Rich.  (S.  C.)  L. 402(1860). 

Lazier   v.    Commonwealth,    10    Gratt.  ■♦  State    f.  Testerman,  68  Mo.  408 

(Va.)   708   (1853).     Compare  State  v.  (1878). 

llobbs,  33  La.  An.  226  (1881).       ^  &  State  i-.  Sides,  64  Mo.  383  (1877). 

An  indictment  for  murder  charged  ''  Hardin  v.  State,  4  Tex.  App.  355 

the  wound  to  have  been  inflicted   on  (1879). 


SEC.  266.]  INDICTMENT    AND    INFORMATION.  301 

and  there  instantly  die,"  is  supported  b}^  showing  that  death 
ensued  twelve  hours  after  the  shooting,  and  on  the  same  day.^ 
And  where  an  indictment  charged  that  the  blow  was  given 
on  the  27th  of  December,  and  that  the  deceased  then  and 
tliere  instantly  died,  and  the  evidence  Avas  that  he  lived  for 
twenty  days,  it  was  held  that  the  variance  was  not  material.^ 
In  State  v.  Haney  ^  an  indictment  for  murder  did  not  allege 
the  time  of  the  death,  nor  that  it  occurred  watliin  a  year  and 
a  day  from  the  time  when  the  wound  was  inflicted,  but 
used  these  w^oids :  ''  of  which  said  mortal  wound  the  said 
J.  H.  did  languish,  and  then  and  thei'e  did  die."  The  court 
held  that  the  indictment  was  sufficient,  and  not  open  to  the 
objection  that  it  was  defective  for  want  of  showing  sufficiently 
that  tlie  death  took  place  within  a  year  and  a  day  from  the 
time  of  the  wound. 

Sec.  265.  Averment  of  death.  —  The  indictment  must 
aver  directly,  and  in  the  most  unequivocal  terms,  that  the 
person  with  wdiose  homicide  the  defendant  is  charged  is  dead. 
A  charge  that  the  defendant  murdered  the  deceased  is  not 
sufficient ;  it  must  also  be  averred  that  he  killed  him.*  The 
expression  "  killed,"  or  "  did  kill,"  is  not,  however,  essential,  if 
other  words  of  equivalent  import,  which  convey  the  same  idea, 
are  used ;  ^  but  an  averment  that  the  defendant  "  did  murder  " 
the  deceased  "  by  shooting  him  Avith  a  gun,"  is  not  an  averment 
that  the  defendant  killed  the  deceased,  and  is  insufficient.^ 

Sec.  266.  Averring  place  of  the  act  causing  death  — 
Under  state  statutes.  —  The  indictment  must  aver  that  the 
killing  took  place  within  the  county  where  the  charge  is 
brought,'  if  such  be  the  case  ;  but  Avhere  the  mortal  injury 
was  given  in  one  county,  and  the  death  took  place  in  another, 

1  State  V.  Ward,  74  Mo.  253  (1881).  «  Strickland  i-.  State,  19  Tex.  App. 

2  State  V.  Baker,  1  Jones  (X.  C)     518  (1886). 

L.  267  (1854).  v  People  v.  Robinson.  17   Cal.  36.3 

3  67  N.  C.  467  (1872).  (1861);    Stiidstill    i'.    State,    7    Ga.   2 
*  Pierce  r.  State,  21  Tex.  App.  669     (1849);    Jackson    r.    People,    18   111. 

(1886);   s.c.  3  S.  W.  Kep.  111.     See  269(1857);   State  r.  Gessert,  21  Minn. 

People  r.  Sanford,  43  Cal.  29  (1872);  .369  (1875);  State  r.   Waller,  88  Mo. 

s.c.  1  Green  Or.  Rep.  682.  402   (1885) ;    State  r.  Taylor,  21  Mo. 

'^  The     words     "deprive    of    life"  477  (1855);  State  v.   Oiiterbridge,  82 

are  equivalent  to  "  kill "  in  an  indict-  N.    C.   617    (1880);    State  >:  LaTiion, 

nient  for  murder.      AYalker  r.  State,  3  Hawks  (N.  C.)  I..  175  (1824).     Com- 

14  Tex.  App.  609  (1884).  pare  Noles  v.  State,  24  Ala.  672  (1854). 


302  HOMICIDE.  [chap.  XI. 

the  indictment  must  show  in  which  county  the  charge  is 
brought,  if  it  be  allowable  to  bring  it  where  the  death  took 
place.i  It  is  not  necessary  to  state  the  precise  locality  within 
the  county .2  And  it  is  competent  for  the  legislature,  by  stat- 
ute, to  dispense  with  the  averment  in  an  indictment  for  mur- 
der, that  the  offence  was  committed  within  the  body  of  the 
county  in  which  the  indictment  was  found,  and  to  require 
that  fact  to  be  shown  by  the  evidence.^  It  is  thought  that 
an  allegation  that  the  killing  was  committed  in  the  county  of 
the  indicting  couLt  is  presumed  to  be  true,  if  not  denied  by 
plea  in  abatement.* 

It  has  been  said  that  an  indictment  for  murder  which  states 
that  A.  B.,  late  of  Bladen  County,  &c.,  with  force  and  arms, 
in  the  county  aforesaid,  &c.,  contains  a  sufficient  description 
of  the  place  where  the  murder  was  alleged  to  have  been  com- 
mitted.^ In  State  v.  Gessert^  the  indictment  charged  the  de- 
fendant with  committing  the  crime  of  murder  by  feloniously, 
&c.,  inflicting  upon  D.,  &c.,  on  August  28, 1874,  in  W.  county, 
a  stab  or  wound,  of  which,  upon  the  same  day,  said  D,  died  in 
the  county  of  P. ;  and  the  court  held  that  it  charged  the  com- 
mission of  the  offence  in  the  county  of  W. 

In  the  case  of  State  v.  Taylor '' an  indictment  for  aiding, 
&c.,  the  commission  of  a  murder,  there  was  no  time  and  place 
to  the  averment  of  the  aiding,  &c.,  but  time  and  place  were 
alleged  to  the  assault,  stroke,  and  death,  and  it  was  then 
averred  that  the  prisoners  were  then  present  aiding  and  abet- 
ting, and  the  court  held  that  the  venue  was  sufficiently  laid.^ 

Sec.  267.  Same  —  Under  federal  statutes.  —  An  indict- 
ment under  the  federal  statutes  must  contain  averments  suffi- 
cient to  show  that  the  act  was  committed  in  or  upon  some 
particular  place  or  vessel  within  the  jurisdiction  of  the  federal 
courts.     Thus  in  the  case  of  the  United  States  v.  Demarchi  ° 

1  Rex  V.  Hargrave,  5  Car.  &  V.  170  *  State   v.   Outerbridge,   82   N.   C. 

(1831).  017  (1880). 

•^  People   V.  Kobinson,  17  Cal.  363  '"  State  v.  Lamon,  3  Hawks  (N.  C.) 

(18G1).     The    omission   of   the    word  L.  175  (182^). 

"county"    after   name    of    county    is  «  21  Minn.  369  (1875). 

cured    by    Mo.    Kev.    Stat.    §     1821.  ^  21  Mo.  477  (1855). 

State  V.  Waller,  88  Mo.  402  (1885).  ^  See  Woodsides  v.  State,  3  Miss. 

3  Noles  V.  State,  24  Ala.  072  (1854).  (2  How.)  655  (1837). 

"  5  Blatchf.  C.  C.  84  (1862). 


SEC.  269.]  INDICTMENT    AND    INFORMATION.  303 

it  was  held  that  in  an  indictment  for  murder,  under  section 
eight  of  act  of  Congress  of  April  30,  1790,  it  is  sufficient  to 
allege  that  the  crime  was  committed  on  a  vessel  owned  by 
American  citizens,  without  alleging  that  the  vessel  was 
American.  But  in  an  indictment  for  piratical  murder,  where 
the  court  has  jurisdiction  over  the  crime,  when  committed  on 
board  a  vessel  having  no  nationality,  the  nationality  of  the 
vessel  need  not  be  alleged,  nor  its  possible  foreign  nationality 
negatived.^  And  an  indictment  against  a  captain  of  a  steam- 
boat, under  the  United  States  statute,^  which  alleges  that  the 
steamboat  was,  at  the  time,  navigating  the  Chesapeake  Bay 
between  Baltimore  and  Annapolis,  in  substance  alleges  that 
the  steamboat  was  being  used  on  navigable  waters  of  the 
United  States.^ 

Sec.  268.  Averring  place  of  the  death.  —  The  indictment 
must  show  the  place  of  death,  as  well  as  the  place  of  the  act 
causing  it ;  *  and  it  must  allege,  with  that  degree  of  certainty 
which  excludes  every  other  indictment,  that  the  murdered 
person  died  in  the  county  where  the  indictment  was  found.^ 
Where  it  is  stated  that  the  assault  and  the  death  occurred  at 
the  same  place,  the  indictment  is  not  supported  by  proof  that 
the  deceased  died  at  a  different  place. ^  An  averment,  coming 
after  the  description  of  the  assault,  stating  that  the  deceased 
'•  did  then  and  there  instantly  die,"  sufficiently  shows  the 
place  of  death;''  but  not  so  if  the  words  "then  and  there" 
are  omitted  from  such  sentence.^ 

Sec.  269.  Description  of  deceased — Setting  out  Chris- 
tian name  —  Idem  sonans.  —  It  is  not  now  necessar}^  for  an 
indictment  for  felonious  homicide  to  charge  that  the  deceased 


1  United     States    v.    Deniarchi,    5  271  ;     State    v.   Lakey,   65    Mo.   217 

Blatchf.  C.  C.  84  (1862).  (1877)  ;  State  v.  Coleman,  17  S.  C.473 

-  U.  S.  Kev.  Stat.  §  5344.  (1882).     Compare  Roach  v.  State,  34 

3  United  States  u.Beacham, 29  Fed.  Ga.    78(1864);     State    r.  Bowen,  16 
Rep.  284  (1886).  Kan.  475  (1876)  ;  State  v.  Potter,  15 

4  People    r.    W^allace,    9    Cal.    30  Kan.  302  (1875). 

(1858)  ;    People    r.   Cox,    9    Cal.    32  5  Riggg  ,._  state,  26  Miss.  51  (1853). 

(1858)  ;  State  v.  Cunimings,  5  La.  An.  ^  Chapman  v.  People,  39  Mich.  357 

330    (1850)  ;   Chapman  v.  People,  39  (1878). 

Midi.  357   (1878);  Biggs  v.  State,  26  "State    v.    Steeley,    65     Mo.    218 

Miss.  51    (1853)  ;  State  v.  Sfeelei/,  65  (1877)  ;  s.c.  27  Am.  Bep.  271. 

Mo.   218    (1877);   s.c.   27   Am.   Rep.  »  State  i-.  Lakey,  65  Mo.  217  (1877). 


30-t  HOMICIDE.  [chap.  XI. 

was  "  in  the  peace  of  the  state  " ;  ^  neither  is  it  necessary  to 
aver  that  the  deceased  was  ''  a  human  being,"  or  "  a  reasonable 
creature  in  being."  ^  Thus  in  Wade  v.  State  ^  an  indictment 
for  murder  alleged  that  the  defendant  killed  ''  Smutty,  INIy 
Darling,"  and  the  court  held  this  to  be  sufficient,  the  question 
of  whether  the  deceased  was  a  "  reasonable  creature  in  being  " 
being  a  matter  of  proof  and  not  of  pleading,  and  it  being 
immaterial  that  the  name  of  the  deceased  was  a  peculiar  one.* 
The  name  in  the  indictment  may  be  that  by  which  the  de- 
ceased was  usually  known,  as  well  as  his  proper  name,  if  the 
two  be  different.^  Thus  where,  in  a  trial  for  the  murder  of 
William  Redus,  there  was  evidence  that  his  true  name  was 
William  "  Reder,"  but  that  he  was  known  and  often  called 
"  Redus,"  the  court  held  that  if  the  jury  so  found  the  fact, 
it  was  immaterial  whether  "  Redus "  Avas  the  true  name  or 
not.^  But  the  proof  must  conform  strictly  to  the  averment 
in  this  respect.''  Thus  it  has  been  held  that  an  indictment 
for  the  murder  of  "  Patrick  Fitz  Patrick,"  is  not  supported  by 
proof  of  the  killing  of  "Patrick  Fitzpatrick,"  and  this,  al- 


1  Dumas  v.  State,  63  Ga.  600  (1879)  ;  6  Car.  &  P.  408  (18.']4)  ;  Rex  v.  Norton, 
Commonwealth  ;;.  Murpliv,  65  Mass.  Kuss.  &  M.  C.  C.  510  (182:>).  See 
(11  Cush.)  472  (1853).      '  Pa^'e    >:    State,   61    Ala.    16    (1878); 

2  Reed  v.  State,  16  Ark.  499  (1855)  ;  Aaron  r.  State,  37  Ala.  106  (1861)  ; 
Merrick  ;;.  State,  63  Ind.  327  (1878)  ;  f^.c.  1  Ala.  Sel.  Cas.  12  ;  People  v. 
State  V.  Stanley,  33  Iowa,  526  (1871)  ;  Lock  wood,  6  Cal.  205  (1856)  ;  Mo.yna- 
Perrymanr.  State,  36  Tex.  321  (1872)  ;  han  v.  People,  3  Colo.  367  (1877); 
Wade  V.  State,  23  Tex.  App.  3U8  Mitelium  ?•.  State,  11  Ga.  615  (1852)  ; 
(1887)  ;  s.c.  4  S.  W.  Rep.  896;  Bean  Penrod  r.  People,  89  111.  150  (1878)  ; 
V.  State,  17  Tex.  App.  60  (1885) ;  s.c.  State  c.  Witt,  34  Kan.  488  (1885) ;  s.c. 
5  Am.  Cr.  Rep.  477;  Ogden  r.  State,  8  Pae.  Rep.  769;  State  v.  Angel,  7 
15  Tex.  App.  454  (1884);  Boliannon  Ired.  (N.  C.)  L.  27  (1846);  Royd  v. 
r.  State,  14  Tex.  App.  271  (1884).  State,  14    Lea    (Tenn.)    161    (1884); 

■"23  Tex.  App.  308  (1887);   s.c.  4  Rutherford  v.  State,  11  Lea   (Tenn.) 

S.  W.  Rep.  896.  31    (1883);    Hunter   r.  State,  8  Tex. 

■*  Wade  V.  State,  23  Tex.  App.  308  App.  75  (1880)  ;  Rothcliild  v.  State,  7 

(1887)  ;  s.c.  4  S.  W.  Rep.  896.  Tex.  App.  519  (1880)  ;   State  ;•.   Lin- 

i  People    V.    Freeland,   6    Cal.    ^(j  coin,  17  Wis.  579  (1863). 

(1856);    Kriel    v.    Commonwealth,    5  *'  Hunter  v.  State,  8  Tex.  App.  75 

Rush    (Ky.)    362    (1869);    s.c.    Law.  (1880). 

Insan.  379;   Commonirealth  v.  Desnutr-  '  See  Moynahan  r.  People,  3  Colo. 

tenn,  82    Mass.  (16  Gray)   1    (1860);  .367(1877);  Mitchum  r.  State,  ]  1  Ga. 

O'Hrien   o.  People,  48  Barb.   (N.  Y.)  615  (1852);  Penrod  v.  People,  89  111. 

274   (1867);    State  v.  Bell,  65    N.  C.  1-50  (1878);  Rutherford    r.    State,  H 

313  (1871)  ;  State  r.  Gardiner,  Wright  Lea  (Tenn.)  31  (1883) ;  State  r.  Liii- 

(Ohio)  392  (1833)  ;  Rex  ;•.  Berriman,  coin,  17  Wis.  579  (1863). 
5  Car.  &  P.  601  (1833)  ;  Anonymous, 


SEC.  269.]  INDICTMENT    AND   INFORMATION. 


305 


though  two  allegations  following  such  designation  described 
the  deceased  as  ''  the  said  Patrick  Fitzpatrick."  i  In  Penrod  v. 
People,^  on  the  trial  of  a  party  indicted  for  the  murder  of  one 
"  Robert  Kain,"  the  evidence  failed  to  show  that  the  person 
killed  was  of  that  name,  the  witnesses  calling  him  "  Kain," 
only,  without  giving  any  Christian  name :  this  variance  was 
held  fatal.  But  merely  proving  the  initials  is  sufficient.  Thus 
where  an  indictment  charged  William  R.  Morris  was  mur- 
dered by  the  prisoner,  and  the  proof  was  that  W.  R.  Morris 
was  slain  by  him,  it  was  held  that  the  proof  of  identity  was 
well  left  to  the  jury,  and  that  a  verdict  of  guilty  found  by 
them  ought  not  to  be  disturbed.^  Where  all  the  witnesses 
agreed  that  they  never  knew  the  deceased  to  be  called  by  the 
name  alleged  in  the  indictment,  but  two  of  them,  without 
professing  to  know  the  real  name,  testified  in  substance  that 
they  supposed  it  to  be  as  alleged,  from  their  recollection  of 
certain  writings  which  they  had  seen  some  time  before,  on 
appeal  it  Avas  held  that  it  was  error  for  the  trial  court  to  so 
instruct  the  jury  as  to  leave  them  to  think  that  they  could 
convict  upon  such  evidence,  by  stating  that  "  if  they  found 
from  the  evidence  that  the  deceased  was  known  by  several 
Christian  names,  and  was  described  by  one  of  these  in  the 
indictment,  and  there  was  proof  of  the  name  as  laid,  it  was 
sufficient."  * 

It  is  thought  that  to  sustain  an  indictment  for  murder  it 
must  be  shown  that  the  Christian  name  of  the  person  killed, 
as  given  in  the  indictment,  was  his  true  name,  or  one  by 
which  he  was  to  a  considerable  extent  called  and  known 
among  those  who  were  acquainted  with  him,*  or  prove  the 
name  so  closely  as  to  bring  the  difference  within  the  principle 
of  idem  sonam.^  Thus  where,  in  an  indictment  for  murder, 
the  name  of  the  deceased  was  alleged  to  be  "•  Boudet,"  or 
"  Bordet,"  wdien  it  was  in  fact  ''  Burte,"  it  was  held  that  the 
variance  was  so  slight  as  to  be  immaterial.*^     And  on  an  in- 

1  Moynahan  v.  People,  3  Colo.  3G7  ^  gee  Page  v.  State,  61  Ala.  16 
(1877).  (1878)  ;  Aaron  v.  State,  37  Ala.  106 

2  89  111.  150  (1878).  (1861)  ;  s.c.  1  Ala.  Sel.  Cas.  12;  State 
SMitchum    V.    State,    11    Ga.   615     r.  Witt,  34  Kan.  488  (1885)  ;  State  v. 

(1852).  Lincoln,  17  Wis.  570  (1863). 

.     estate    V.    Lincoln,    17    Wis.    579  '>  Aaron  y.  State,  37  Ala.  106(1861) ; 

(1863).  s.c.  1  Ala.  Sec.  Cas.  12. 


306  HOMICIDE.  [chap.  XI. 

clictment  for  killing  "  Tobin  Prejer,"  proof  of  the  killing  of 
a  person  whose  name  was  sounded  "  Tobin  Prior  "  was  held 
to  be  no  variance.^  In  the  case  of  State  v.  Witt^  an  informa- 
tion for  murder  charged  the  killing  of  "  Bernhart."  The  per- 
son killed  was  "  Banhart."  The  variance  was  held  to  be  im- 
material. Where,  in  an  indictment  for  murder,  the  surname 
of  the  person  killed  was  spelled  in  three  different  Avays,  to 
wit,  "  Giddings,"  "  Gidings,"  and  "  Gidines,"  the  Christian 
name  being  the  same  in  every  case,  the  variance  was  held  not 
sufficient  ground  for  an  arrest  of  judgment,  the  second  and 
third  forms  being  each  idem  sonans  with  the  first,  within  the 
decisions.^ 

It  is  thought  the  failure  of  the  witness  to  give,  upon  a  trial 
for  murder,  the  full  name  of  the  person  murdered,  as  set  out 
in  the  indictment,  is  not  material  after  the  verdict,  if  the 
name  or  description,  as  given  by  the  witness,  corresponds,  as 
far  as  it  goes,  Avith  the  same  mentioned  in  the  indictment, 
and  it  sufficiently  appearing  that  there  was  no  contest  over 
the  name  or  identity  of  the  person.^  A  variance  in  the  middle 
name  is  immaterial.^ 

Where  the  deceased  had  no  name,  or  where  it  was  unknown 
to  the  grand  jury,  the  indictment  should  describe  the  deceased, 
and  allege  the  name  or  a  part  thereof,  as  the  case  may  be,  to 
be  unknown  to  the  grand  jury  ;*"  and  such  an  averment  is  a 
material  one,  to  be  proven  to  the  satisfaction  of  the  jury.'^ 
The  words,  "infant  child,  name  to  the  grand  jury  unknown," 
are  a  sufficient  description  in  an  indictment  of  a  human  being 
upon  whom  the  offence  of  murder  may  be  committed.^     And 

an  indictment  charging  that  the  defendant  "  killed 

Butler,  whose  Christian  name  is  to  the  grand  jury  unknown," 
is  sufficient.^  Where  an  indictment  is  for  murder  of  "a 
certain  Wyandotte  Indian,  whose  uame  is  unknown  in  the 
grand  jury,"  it  is    sufficiently  descriptive  of   the    deceased, 

1  Page  r.  State,  01  Ala.  10  (1878).  ^  Ttmpe  r.  State,  40  Ala.  .350(1807); 

2  34  Kan.  4^8  (1885).  Bryant  v.  State,  .36  Ala.  270  (1860)  ; 

3  State  V.  Lincoln,  17  Wis.  570  Edmonds  v.  State,  .34  Ark.  720  (1879)  ; 
(1863).  Keed  r.  State,  16  Ark.  499  (1855). 

Mlutherford     r.     State,  11     Lea          '  Reed  r.  State,  16  Ark.  499  (1855). 

(Tenn.)  31  (1883).  »  Tempe  v.  State,  40  Al.n.  3-50  (1807). 

5  People  V.  Lockwood,  0  Cal.  205          ^  Bryant    v.     State,   36    Ala.   270 

(1850).  (1860). 


SEC.  271.]  INDICTMENT    AND   INFORMATION.  307 

without  any  allegation  that  the  words  "  Wyandotte  Indian  " 
mean  a  human  being.^ 

If  the  name  of  the  deceased  is  contained  in  the  averment 
of  the  assault  or  infliction  of  the  mortal  injur}*,  its  omission 
in  the  averment  of  death  is  immaterial,^  but  it  must  be  stated 
in  the  conclusion,^  the  rule,  stated  generally,  being  that  the 
indictment  must  so  indicate  the  deceased  that  the  defendant 
could  successfully  plead  former  jeopardy  to  another  indict- 
ment for  the  homicide  of  the  same  person.*  An  indictment 
reciting  that  the  accused,  with  malice  aforethought,  did  kill 
Frank  Wheeler,  by  wounding  him  with  a  knife,  "  from  which 
the  said  .  .  .  did  then  and  there  die,"  is  good,  the  blank  name 
being  immaterial,  since  it  was  apparent  that  Frank  Wheeler 
was  referred  to.^  But  where  an  indictment  which  charges 
an  assault  and  stabbing  of  one  H.  D.,  whereof  he  died,  and 
concluding,  "  and  so  the  jurors  do  say  that  the  said  C.  H.  P., 
in  manner  and  form,  and  by  the  means  aforesaid,  feloniously, 
&c.,  did  kill  and  murder,"  is  bad,  as  not  designating  the  per- 
son murdered.*^ 

Sec.  270.  Averring  defendant's  sanity.  —  The  fact  that 
the  defendant  is  or  may  be  insane  or  noii  coynpos  mentis^  is 
solely  a  matter  of  defence ;  consequently  an  indictment  for 
homicide  need  not  allege  that  the  defendant  is  of  sound  mind," 
nor  that  he  is  "  a  person  of  sound  memory  or  discretion."  ^ 

Sec.  271.  Conclusion  of  indictment.  —  All  grades  of  homi- 
cide being  offences  at  common  law  as  well  as  under  the  stat- 
utes of  the  various  states,  the  words  "  contrary  to  the  form 
of  the  statute  in  such  case  made  and  provided,"  or  their 
equivalent,  are  not  necessary,^  unless  prescribed  by  statute  :  ^° 
particularly  is  this  true  in  an  indictment  for  murder,  where 
the  assault  is  alleged  to  have  been  committed  in  the  same 

O 

1  Reed  v.  State,  16  Ark.  499  (1855).  «  State  v.  Pemberton,  30  Mo.  370 

2  Alford  V.  Commonwealth,  84  Ky.     (1860). 

632  (1886).  -  Fahnestock  v.  State,  23  Ind.  231 

3  Dias  V.  State,  7  Blackf.  (Ind.)  20     (1864). 

(1843);  s.c.  39  Am.  Dec.  448;  State  »  Dumas  r.  State,  63  Ga.  600  (1879); 

V.  Pemberton,  30  Mo.  376  (1860).  Bean  r.  State,  17  Tex.  App.  60  (1885). 

*  State  V.  Brabson,  38  La.  An.  144  »  State    v.    Harris,    12    Nev.     414 

(1886).  (1877). 

^  Alford  V.  Commonwealtb,  84  Ky.  ^ '  See   State   r.   Dunkley,    3    Ired. 

623  (1886).     See  State  v.  Brabson,  38  (X.  C.)  L.  116  (1842). 
La.  An.  144  (1886). 


308  HOMICIDE.  [chap.  XL 

county  in  the  state,  and  the  deatli  to  have  occurred  in  another 
state.^  But  wliere  the  indictment  is  so  concluded,  the  fact 
that  the  offence  is  defined  by  one  statute  and  the  punishment 
is  prescribed  by  another,  will  not  necessitate  the  use  of  the 
plural  instead  of  the  singular  form.^  In  some  states  it  is  pre- 
scribed that  all  indictments  shall  conclude  ''against  the  peace 
and  dignity  of  the  state,"  or  with  other  expressions  of  like 
nature.  Such  a  provision  is  mandatory,  and,  therefore,  an 
indictment  is  not  good  which  fails  to  conform  strictly  thereto.^ 
Thus  the  Texas  constitution  requires  that  "all  prosecutions 
shall  be  carried  on  and  in  the  name  of  the  '  state  of  Texas,' 
and  conclude  '  against  the  peace  and  dignity  of  the  state.' " 
Accordingly,  where  an  indictment  for  murder  concludes 
"against  the  peace  and  dignity  of  the  statute,"  this  will 
vitiate  the  conviction,  although  the  objection  was  raised  in 
the  fh'st  instance  in  the  appellate  court,  and  by  a  motion  for 
a  rehearing,  after  judgment  of  affirmance.'* 

Sec.  272.  Cliarging^  more  than  one  homicide  by  the 
same  act.  —  The  indictment  may  charge  the  accused  in  one 
count  with  the  murder  of  two  or  more  persons  by  the  same 
act ;  ^  but  it  has  been  held  that  where  the  indictment  is  so 
framed,  and  it  appears  that  each  of  the  deceased  persons  were 
killed  by  a  separate  blow,  although  inflicted  at  the  same  time 
and  place,  the  defendant  may  require  the  prosecution  to  elect 
upon  which  homicide  they  will  proceed;  but  that  judgment 
cannot,  however,  be  arrested  thereon.^ 

Sec.  273.  Joinder  of  counts  —  Different  modes  of  com- 
mitting- one  offence."  —  Where  there  is  uncertainty  as  to  the 
mode  in  which  the  homicide  was  committed,  or  as  to  the  means 


1  State  V.  Dunklcy,  3  Ired.  (N.  C.)  ^  Calvert  v.  State,  8  Tex.  App.  orSS 
L.  116(1842).  (1880);  Cox   v.    State,   8   Tex.    App. 

2  Thus  in  Bennett  v.  State,  .3  Ind.  254  (1880). 

167  (1851),  an  indictment  for  murder  •»  Cox    c.    State,  8   Tex.   App.    254 

concluded   contra  formam  statutl.     By  (1880). 

tlie   statute  of  1840,  tlie   punishment  '"'  Cliivarrio  v.  State,  15  Tex.  App. 

is  either  death  or  imprisonment  in  tlie  3.30  (1884);  Rucker  r.  State,  7  Tex. 

state  prison  at  hard  labor  during  life,  App.  549  (1880). 

at   tlie  discretion  of  the   jury.      Tiie  *'  Forrest  v.  State,  13  Lea  (Tenn.) 

court  held  that  the  conclusion  of  the  103  (1884). 

indictment    in     the    singular,  to  wit,  "  See  ante,  §  245. 

contra  formam  statutt,  was  correct. 


SEC.  274.]  INDICTMENT   AND    INFORMATION.  309 

used,  it  is  good  pleading  to  frame  the  indictment  with  as 
many  counts  as  may  be  necessary  to  meet  the  evidence ;  ^  and 
the  prosecution  should  not  be  required  to  elect  on  which 
count  they  will  proceed  to  trial,^  as  all  of  such  counts,  taken 
together,  describe  only  a  single  offence.^  Thus  counts  alleg- 
ing a  murder  by  burning,  by  beating,  and  by  both  burning 
and  beating,  may  be  joined,  and  the  state  cannot  be  compelled 
to  elect  between  them  at  the  trial.* 

Sec.  274.  Same  —  Different  offences.  —  Murder  and  man- 
slaughter, predicated  of  the  same  homicide,  may  be  charged 
in  the  same  indictment,^  and  the  prosecution  should  not  be 
required  to  elect  upon  which  count  it  will  proceed,^  nor 
should  one  of  the  counts  be  quashed  on  motion.  Thus  it  has 
been  held  that  the  joinder  of  a  count  of  manslaughter  to  a 
count  of  murder,  with  an  averment  that  the  prisoner  had 
previously  been  convicted  of  manslaughter  only,  is  proper, 
when  it  is  sought  to  impose  on  the  prisoner,  in  case  he  is 
found  guilty  of  manslaughter  only,  the  double  punishment 
provided  by  statute  in  case  of  a  second  conviction  of  man- 
slaughter.'' And  where  two  counts  of  an  indictment  charged 
the  defendant  with  manslaughter  in  the  first  degree,  and  a  third 
count  with  manslaughter  in  the  second  degree,  hut  only  one 
act  of  killing  was  charged,  under  a  statute  ^  allowing  one  act 
to  be  charged  in  different  counts,  it  was  said  that  the  prosecu- 
tion will  not  be  compelled  to  elect  on  which  count  it  will  pro- 

iJoy  r.  State,  14  Ind.  139  (1800);  30  N.  Y.  39  (1868);  Dill  v.  State,  1 

People    r.   McDowell,   63    Mich.    229  Tex.  App.  278  (1877). 
(1886);    s.c.   9   Cr.  L.  Mag.    72 ;    30  ^  Hunter  i-.  State,  40  N.  J.  L.   (11 

N.  W.  Rep.  68;  Hunter  r.  State,   40  Vr.)  495  (1878). 
N.  J.  L.  (11  Vr.)  495  (1878)  ;  Laner-  *  Joy  v.  State,  14  Ind.  139  (1860). 

gan  V.  People,  39   N.  Y.  39    (1868) ;  &  Henry    v.    State,    33     Ala.     389 

Cox  i".  People,  19  Hun  (N.  Y.)  430  (1859)  ;  People  i-.  Sessions,  58  Mich. 

(1879);    Dill    v.    State,    1    Tex.    App.  594  (1886);  s.c.  26  N.  W.  Rep.  291; 

278(1877);  Smith  r.  Commonwealth,  People  v.  McCarthy,   110    N.    Y.  309 

21   Gratt.   (Ya.)   809  (1871)  ;    Lazier  (1888);  s.c.  18  N.  E.  Rep.  128;  Kane 

V.    Commonwealth,    10    Gratt.    (Va.)  i-.    Commonwealth,    109    Pa.    St.   541 

708  (1853).  (1885).     See  ante,  §  245. 

2  Joy  V.  State,  14  Ind.  1.39  (1860)  ;  «  People    i-.    McCarthy,    110  N.  Y. 

People   V.   McDowell,   63    Mich.   229  309  (1888). 

(1886)  ;    s.c.    9   Cr.   L.    Mag.  72  ;    30  "  Kane  r.  Commonwealth,  109  Pa. 

N.  W.  Rep.  68;  Lanergan   v.  People,  St.  541  (1885). 

8  N.  Y.  Crim.  Proc.  §  279. 


310  HOMICIDE.  [chap.  XI. 

ceed.i  jj-^  f\yQ  casg  of  People  v.  Sessions  ^  the  defendant  was 
bound  over  on  a  charge  of  murder,  and  the  information 
afterwards  filed  charged  in  the  first  count,  murder ;  in  the  sec- 
ond count,  the  statutory  crime  of  manslaughter  by  causing 
death  by  abortion  ;  and  the  court  held  that  a  motion  to  quash 
the  second  count  was  properly  refused. 

Sec.  275.  Same  —  Principals  and  accessories.  —  Where 
an  indictment  from  prudence  charges  the  defendant  as  princi- 
pal in  one  count  and  as  accessory  before  the  fact  in  another, 
a  motion  to  require  the  prosecution  to  elect  upon  which  count 
they  will  proceed  should  not  be  granted ;  ^  and  this  rule  ap- 
plies where  there  is  a  plurality  of  defendants,  and  one  count 
charges  all  with  being  principals,  and  another  charges  part  as 
accessories  before  the  fact.*  Thus  if  several  persons  are 
indicted  in  one  count  as  principals  in  the  murder,  and  in 
another  count  four  of  them  are  indicted  as  accessories  before 
the  fact,  the  latter  may  be  rejected  as  surplusage.^  And 
where  an  indictment  for  murder  charged  in  one  count  three 
defendants  as  principals,  and  in  another  two  as  principals, 
and  the  third  as  an  accessory  before  the  fact,  it  was  held  not 
to  be  a  misjoinder  of  counts.^ 

Conviction  of  a  degree,  or  for  an  offence,  lower  than  that 
charged,  in  the  case  of  other  analogous  crimes,  will  be  valid. 
Thus  an  indictment  for  murder  in  the  first  degree  will  sustain 
a  conviction  of  murder  in  any  lower  degree ;  "*  and  an  indict> 
ment  for  murder  will  sustain  a  conviction  of  voluntary  man- 
slaughter,^ but  not  of  involuntary  manslaughter,  unless  that 

1  People  V.  McCarthy,  110  N.  Y.  ^  McPherson  v.  State,  29  Ark.  225 
309  (1888)  ;  s.c.  18  N.  E.  Rep.  128.  (1874)  ;   People  i'.  Dolan,  9  Cal.  576 

2  58  Mich.  594  (1886)  ;  s.c.  26  N.  (1858)  ;  Buckner  v.  Commonwealth, 
W.  Rep.  291.  14  Bush  (Ky.)  601  (1879)  ;  Conner  v. 

3  State  V.  Hamlin,  47  Conn.  95  Commonwealth,  13  Bush  (Ky.)  714 
(1879)  ;  s.c.  36  Am.  Rep.  54.  Com-  (1878)  ;  Davis  v.  State,  39  Md.  355 
pare  Simms  v.  State,  10  Tex.  App.  (1873);  State  v.  Sloan,  47  Mo.  604 
131  (1882).  (1871);   McGee  v.  State,  8  Mo.  495 

*  State    V.    Hamlin,   47    Conn.    95  (1844) ;   Keefe   v.    People,   40   N.   Y. 

(1879)  ;    s.c.  36  Am.  Rep.  54.     Com-  .348  (1860)  ;    State  v.  Grant,  7  Oreg. 

pare  People  v.  Ah  Hop,  1  Idaho,  698  414    (1879)  ;    Livingston  7».  Common- 

(1878).  wealth's   Case,   14    Gratt.    (Va.)    592 

5  People  V.  Ah  Hop,  1  Idaho,  698  (1857)  ;  Giskie  v.  State,  71  Wis.  612 
(1878).  (1888)  ;  s.c.  38  N.  W.  Rep.  334. 

6  State  V.  Hamlin,  47  Conn.  95  «  McPherson  v.  State,  29  Ark.  225 
(1879)  ;  s.c.  36  Am.  Rep.  54.  (1874)  ;  People  v.  Dolan,  9  Cal.  576 


SEC.  275.]  INDICTMENT   AND   INFORMATION. 


311 


degree  of  the  offence  is  also  distinctl}^  charged.^  Under 
such  an  indictment  for  murder  the  defendant  may  be  con- 
victed of  assault  with  intent  to  kill  and  murder  ;  ^  but  not 
unless  the  indictment  embraces  the  charge  of  assault.^ 

In  the  case  of  Brown  v.  State*  an  indictment  for  man- 
slaughter contained  two  counts :  the  first  charged  voluntary 
manslaughter  in  express  terms;  and  the  second,  that  the  de- 
fendant, on  the  day  named,  did  "unlawfully,  feloniously,  and 
wilfully  touch,  beat,  bruise,  and  strike  down,  upon  a  brick 
pavement,  in  a  violent  manner,  and  with  great  force,  H.,  from 
which  striking  down,  and  the  falling  upon  the  pavement,  he, 
the  said  H.,  then  and  thereby  received  a  mortal  wound  on  his 
head,"  from  the  effect  of  which  death  instantly  ensued.  The 
court  held  that  nothing  was  charged  in  the  second  count  from 
which  any  intention  to  take  the  life  of  the  deceased  could  be  in- 
ferred, but  the  plain  inference  therefrom  was  that  death  was  not 
intended,  although  the  striking  was  unlawful  and  intentional, 
and  that  a  verdict  of  guilty  of  the  crime  of  involuntary  man- 
slaughter should  therefore  not  be  reversed  on  the  ground  that 
both  counts  in  the  indictment  charged  voluntary  manslaughter. 


(1858)  ;  Packer  v.  People,  8  Colo.  361 
(1885);  s.c.  8  Pac.  Rep.  564;  Rey- 
nolds V.  State,  1  Kelly  (Ga.)  222 
(1846)  ;  Roy  v.  Kansas,  2  Kan.  405 
(1864);  Buckner  v.  Cominonwealtli, 
14  Bush  (Ky.)  601  (1879)  ;  Conner 
V.  Commonwealth,  Vi  Bush  (Ky.) 
714  (1878)  ;  King  v.  State,  6  Miss. 
(5  How.)  7.30  (1841);  State  v.  Sloan, 
47  Mo.  604  (1871)  ;  Plummer  v.  State, 
6  Mo.  231  (1840)  ;  Watson  v.  State, 
6  Mo.  497  (1838)  ;  Burnett  v.  State, 
14  Lea  (Tenn.)  439  (1884);  People 
V.  McDonnell,  92  N.  Y.  657  (1883)  ; 
State  r.  Grant,  7  Oreg.  414  (1879); 
Peterson  r.  State,  12  Tex.  App.  650 
(1833)  ;  Livingston  v.  Common- 
wealth's Case,  14  Gratt.  (Va.)  592 
(1857) ;  White  v.  Territory,  3  Wash. 
Tr.  397  (1888)  ;  s.c.  19  Pac.  Rep.  37. 
After  the  finding  of  an  indictment 
for  murder,  a  change  in  the  law  made 
offences  similar  to  that  charged  man- 
slaughter only.  The  act  contained 
no  saving  clause.  The  court  held 
that  a  trial  for  manslaughter  could  be 


had  under  the  indictment.  Packer  v. 
People,  8  Colo.  361  (1885)  ;  s.c.  7  Cr. 
L.  Mag.  239;  8  Pac.  Rep.  564. 

Under  an  indictment  charging  mur- 
der by  blows,  a  conviction  of  man- 
slaughter may  be  had  on  evidence 
showing  that  the  death  was  caused  by 
pleuro-pnenmonia  superinduced  by  tlie 
wound  and  the  blows.  Burnett  v. 
State,  14  Lea  (Tenn.)  439  (1884). 

1  Bruner  v.  State,  58  Ind.  159 
(1877)  ;  Walters  v.  Commonwealth, 
44  Pa.  St.  135  (1862).  See  Brown  r. 
State,  110  Ind.  486  (1886)  ;  s.c.  11 
N.  E.  Rep.  447.  Compare  Buckner  v. 
Commonwealth,  14  Bush  (Ky.)  601 
(1879);  Conner  v.  Commonwealth,  13 
Bush  (Ky.)  714  (1878). 

2  People  V.  McDonnell,  92  N.  Y. 
658  (1883)  ;  Peterson  v.  State,  12  Tex. 
App.  650  (1883).  See  Bush  r.  Com- 
monwealth, 78  Ky.  268  (1880). 

3  Scott  ('.State,  60  Miss.  268  (1882). 
*  110  Ind.  486  (1880)  ;  s.c.  11  N.  E. 

Rep.  447. 


312  HOMICIDE.  [chap.  XI. 

It  has  been  held  in  Kentucky  that  if,  on  a  trial  for  murder 
o-r  manslaugliter,  there  be  any  evidence  that  the  wound  was 
not  dangerous  in  itself,  and  death  resulted  from  improper 
treatment  or  from  disease  contracted  subsequently,  not  result- 
ing from  the  Avound,  the  jury  may  be  so  instructed,  and  may 
find  the  accused  guilty  of  maliciously  wounding  under  the 
statute,^  or  of  wounding  in  a  sudden  affray .^  And  one  in- 
dicted for  murder  may  be  convicted  of  murder,  voluntary 
manslaughter,  or  involuntary  manslaughter,  but  not  of  the 
offence  of  killing  by  wilfully  striking,  &c.,  as  defined  by  the 
Kentucky  statute.'^  He  may  be  guilty  of  involuntary  man- 
slaughter without  being  guilty  of  such  statutory  offence,  but 
not  conversely.^  Killing  by  wilfully  striking,  &c.,  is  not 
included  in  the  crime  of  murder,  and  is  not  a  degree  of  the 
offence  of  homicide  within  the  meaning  of  the  Kentucky 
Criminal  Code  ;  ^  hence  under  an  indictment  for  murder, 
the  accused  cannot  be  convicted  of  the  crime  of  killing  by 
wilfully  striking,  &c.,  but  he  may  be  convicted  of  either  of 
the  degrees  of  manslaughter.^ 

Sec.  276.  indictment  of  accessories  and  co-conspirators. 
—  One  whom  the  proof  shows  to  have  been  a  principal  in  the 
second  degree,  having  l)een  present  and  aiding,  abetting,  or 
assisting  in  the  homicide,  may  be  convicted  under  an  indict- 
ment charging  him  as  the  actual  perpetrator,  or  as  principal, 
in  the  second  degree.'^  Thus  under  the  Illinois  statute,  the 
man  who,  ''  not  being  present,  aiding,  abetting  or  assisting 

1  Ky.  Gen.  Stat.,  c.  29,  art.  0,  §  2.  Or.  Rep.  570;  12  N.  E.  Kep.  805;  17 

-Bush  V.  Coinmonwealth,  78    Ky.  N.    E.    Kep.    898;    Cominonwealtli    r. 

268(1880);  Ky.  Gen.  Stat.,  c.  29,  art.  Cliapman,  05   Mass.    (11    Cush.)  422 

17.  (1853);  State  v.  Pay*'"".  ^0  ^^o.  220 

•'  Ky.  Gen.  Stat.,  c.  29,  art.  4,  §  2.  (1880)  ;  s.c.  2  S.  W.  Kep.  394;  State 

*  Buckner    v.    Comnionwealtli,    14  v.  Cockman,  1  Winst.   (N.  C.)  L.  No. 

Bush  (Ky.)  GOl  (1879).  2,  95   (1804)  ;  SUite  v.  Fley,  2  Brev. 

5  Ky.  Cr.  Code,  §§  202,  203.  (S.  C.)  L.  338  (1809)  ;  s.c.  4  Am.  Dec. 

6  Conner  r.  Comnionwealtli,  13  583;  Staro  v.  Anthony,  1  McC.  (S.  C.) 
Bush  (Ky.)  714  (1878).  L.    285    (1821);    State  v.  Jenkins,   14 

"  Krister     r.    State,   26     Ala.     107  Kich.   (S.  C.)  L.  215  (1867)  ;  s.c.  94 

(1855);  People  r.  Ah  Fat,  48  Cal.  01  Am.    Dec.    132;   Sharpe    v.  State,  17 

(1874)  ;  State  v.  O'Xeal,  1  lloust.  Cr.  Te.x.  App.  48G  (1885)  ;  Davis  v.  State, 

Cas.  (Del.)  58  (1858)  ;  Tliompson  v.  3    Tex.    App.  91    (1878)  ;    Hawley  v. 

Commonwealth,     1     jMet.     (Ky.)     13  Commonwealth,  75   Va.  847    (1880); 

(1858) ;   Spies  v.  People    (Anarchists'  State    ?•.    Cameron,  2    Chand.  (Wis.) 

Case),  122  111.  1   (1887);    s.c.  3  Am.  172  (1850)  ;  Uniterl  States  v.  Douglass, 

St.  Rep.  320 ;  9  Cr.  L.  Mag.  829 ;  0  Am.  2  Blatchf.  C.  C.  207  (1851). 


SEC/ 276.]  INDICTMENT   AND    INFORMATION.  31o 

liatli  advised,  encouraged,  aided,  or  abetted  the  perpetration 
of  a  crime,"  may  be  considered  as  the  principal  in  tlie  com- 
mission of  the  crime,  may  be  intUcted  as  a  principal,  and  may 
be  punished  as  such.  The  indictment  need  not  saj-  anything 
about  liis  having  aided  and  abetted  either  a  known  j^rincipal 
or  an  unknown  principal.  It  may  simply  charge  him  with 
committing  the  crime  as  principal.  Then,  if,  upon  the  trial, 
the  proof  shows  that  the  person  charged  aided,  abetted, 
assisted,  advised,  or  encouraged  the  perpetration  of  the  crime, 
the  charge  that  he  committed  it  as  principal  is  established 
against  him.  It  would  make  no  difference  whether  the  proof 
showed  that  he  so  aided  and  abetted  a  known  or  an  unknown 
principal. 1 

If  the  indictment  charges  that  the  defendant  was  present, 
aiding  and  abetting  another  in  the  commission  of  a  homicide, 
tlie  proof  need  not  conform  strictly  to  the  averment  as  to  the 
actual  perpetrator.  In  an  indictment  against  several  for 
murder,  some  of  the  counts  charged  the  defendants  with  hav- 
ing advised,  encouraged,  aided,  and  abetted  a  particular  per- 
son named  in  the  perpetration  of  the  crime,  and  evidence 
was  introduced  to  show  that  the  particular  person  named 
did  perpetrate  the  crime.  Other  counts  charged  the  defend- 
ants with  having  advised,  encouraged,  aided,  and  abetted  an 
unknown  person  in  the  commission  of  the  crime,  and  proof 
was  given  which  tended  to  show  that  the  perpetrator  of  the 
crime  was  an  unknown  person.  In  this  condition  of  the 
pleadings  and  the  proofs  it  was  not  required  of  the  trial 
court  that  it  should  so  direct  the  jury  as  to  restrict  them  to 
the  consideration  of  the  case  on  the  theory  that  the  crime 
was  committed  by  the  particular  person  named,  and  to  omit 
any  reference  to  the  other  theory  that  it  was  perpetrated  by 
an  unknown  person.^  And  where  an  indictment  for  murder 
against  two  rioters  charges  that  the    mortal  injury  was  in- 

^  Spies  V.  People,  122  111.  1  (1887)  ;  court  held  that  it  was  not  inconsistent, 

s.c.    3   Am.   St.  Rep.  o20 ;  G  Am.    Cr.  for  botli  defendants   were  equally  re- 

Kep.    570;    9    Cr.   L.    Mag.    829;    12  sponsible.     State  v.  Payton,    90   Mo. 

N.  E.  Rep.  865 ;  17  N.  E.  Rep.  898.  220  (1886)  ;  s.c.  2  S.  w".  Rep.  .394. 

An   indictment,  charging   two    de-  ^  gpigg  j,.  pgople,  122  111.  1  (1887); 

fendants    with    murder,   stated    that,  s.c.   3  Am.  St.  Rep.  320;  6  Am.  Cr. 

with    guns,  &.C.,  they   shot    deceased.  Rep.    570;    9  Cr.    L.    Mag.    829;     12 

"giving  him  one  mortal  wound."   The  N.  E.  Rep.  865;  17  N.  E.  Rep.  898. 


314  HOMICIDE.  [chap.  XI. 

flicteclby  the  prisoners,  proof  that  it  was  inflicted  by  others  of 
the  rioters,  whether  they  are  known  or  unknown,  it  seems  will 
sustain  the  indictment,  — because  all  who  are  present  and  par- 
ticipate in  the  commission  of  the  offence  are  equally  guilty .^ 

If  the  indictment  charges  that  A  gave  the  mortal  blow,  and 
that  B  and  C  were  present  aiding  and  abetting,  while  the 
evidence  shows  that  B  struck  the  blow,  and  that  A  and  C 
were  present  aiding  and  abetting,  this  is  not  a  material  vari- 
ance, for  the  blow  is  adjudged  in  law  to  be  the  stroke  of  every 
one  of  them. 2 

Proof  that  the  defendant  was  accessory  only,  whether  before 
or  after  the  fact,  will  not  warrant  a  conviction  under  an  in- 
dictment charging  him  as  principal ;  ^  there  must  be  a  distinct 
and  specific  averment  that  the  defendant  advised,  encouraged, 
or  assisted  a  person  named  to  commit  the  crime  of  murder.'* 
And  an  indictment  which  charges  the  defendant  both  with 
"  assisting  and  abetting "  in  the  killing,  and  with  being  an 
"accessory  before  the  fact  to  the  killing  and  murdering,"  is 
fatally  inconsistent.^ 

Sec.  277.  Joint  indictment.  —  As  in  the  case  of  other 
crimes,  all  or  any  of  the  participants  in  the  homicide  may  be 
jointly  indicted  in  one  count  for  its  commission ;  ^  and  the 
individual  acts  of  each  defendant  need  not  be  separately 
stated.'^  Under  such  a  charge  one  alone  may  be  tried,^  or  all 
may  be  tried  and  one  convicted  of  the  crime  ^  or  degree 
charged,  and  another  of  a  lower  degree  or  offence,^  or  one 
may  be  convicted  and  the  others  acquitted.^^ 

1  State  V.  Jenkins,  14  Rich.  (S.  C.)  (1856)  ;  State  v.  Payton,  90  Mo.  220 
L.  215  (1807)  ;  s.c.  94  Am.  Dec.  132.  (1886)  ;  s.c.  3  S.  W.  Rep.  394;  State 

2  Bristcr  r.  State,  26  Ala.  107  i'.  Arden,  1  Bay  (S.  C.)  L.  487  (1795)  ; 
(1855)  ;  State  v.  Cockman,  1  Winst.  State  v.  Bradley,  9  Rich.  (S.  C.)  L. 
(X.  C.)  L.  No.  2,  95  (18(J4).  168    (1855);    Hampton   v.    State,   45 

3  Walrath    v.     State,     8    Neb.    80  Tex.  154  (1876). 

(1878).  7  State    v.    Payton,    90    Mo.    220 

*  An  indictment  charged  S.  H.  with  (1886)  ;  s.c.  2  S.  W.  Rep.  394. 

inciting,  &c.,  S.  H.  to  a  murder  in-  ^  State  v.  Bradley,  9  Rich.  (S.  C.) 

stead  of  W.  R.  S.     Held,  a  fatal  mis-  L.  168  (1855). 

take.     State  v.  Houston,  19  Mo.  211  »  Mask    v.     State,     32     Miss.    405 

(18''^3).  (18.50)  ;  State  v.  Arden,  1  Bay  (S.  C.) 

^  State  V.  Sales,  30  La.  An.  pt.  IT.  L.  487  (1795). 

916  (1878).  10  Hampton   v.  State,  45  Tex.  154 

«  State    ?).   Zcihart,    40    Towa,    169  (1876). 

(1847)  ;  Mask  v.  State,  32  Miss.  405 


SEC.  278.]  INDICTMENT   AND   INFORMATION.  315 

Sec.  278.    Signature  and  indorsement  of  indictment.  — 

At  common  law  it  is  not  necessary  for  the  prosecuting  officer 
to  sign  or  indorse  the  indictment ;  ^  but  in  some  of  the  states 
it  is  made  essential  by  statute.^  It  is  essential  to  the  valid- 
ity of  every  indictment  that  it  contain  an  indorsement  that 
it  is  "  a  true  bill,"  signed  by  the  foreman  of  the  grand  jur}^ ;  ^ 
but  the  omission  of  such  an  indorsement  should  be  taken 
advantage  of  by  motion  to  set  aside  the  indictment,  or  by 
demurrer.* 

It  is  sometimes  provided  by  statute  that  the  names  of  all 
material  witnesses  for  the  state,  who  testified  before  the  grand 
jury,  shall  be  indorsed  on  the  indictment ;  but  an  objection 
to  the  omission  of  this  indorsement  must  be  made  on  motion 
to  quash,  or  it  will  be  deemed  to  be  waived.^ 

1  State  r.  Reed,  67  Me.  127  (1877);  (1869)  ;   State  v.  Harwood,  1   Winst. 

Keithler  v.  State,  18  Miss.  (10  Sined.  (N.  C.)  L.,  No.  1,  228  (1864). 

&  M.)  192,  235  (1848).  *  State   v.  Shippey,   10   Minn.  223 

^  See    Heacock    r.    State,   42    Ind.  (1865).      See    State   v.    Harwood,    1 

393  (1873).  Winst.  (N.  C.)  L.,  No.  1,  228  (1864). 

3  State  V.  Shipper,  10  Minn.  223  &  State  i;.  Griffin,  87  Mo.  608  (1885). 
(1865)  ;  State  v.  Horton,  63  N.  C.  595 


CHAPTER   XII. 

BAIL   IN   HOMICIDE   CASES. 

Sec.  279.  Common  law  doctrine. 

Sec.  280.  American  doctrine. 

Sec.  281.  Same  —  Texas  doctrine. 

Sec.  282.  When  bail  refused. 

Sec.  283.  Murder  in  first  degree  —  Bailable  when. 

Sec.  284.  Jurisdiction  to  admit  to  bail. 

Sec.  285.  Granting  bail  after  indictment. 

Sec.  286.  Cause  for  admission  to  bail  —  Sickness  and  disease. 

Sec.  287.  What  inquired  into. 

Sec.  288.  Proof  of  guilt  —  When  justifies  refusal  of  bail. 

Sec.  289.  Same  —  Burden  on  defendant  to  show  guilt  not  evident. 

Sec.  290.  Failure  of  jury  to  agree. 

Sec.  291.  Bail  after  conviction. 

Sec.  292.  Granting  and  refusing  bail  —  Procedure. 

Sec.  293.  Same  —  Review. 

Sec.  279.  Common  law  doctrine.  —  At  common  law  all 
public  offences  are  bailable,  not  excepting  even  crimes  pun- 
ishable with  death ;  though  the  right  to  refuse  bail  to  a  per- 
son charged  with  such  a  crime  is  within  the  discretion  of  the 
court.i     This  discretion   to  bail  extended  to  every  stage  of 

1  Barney's  Case,  5  Mod.  323(1097);  Burr's    Trial,     300;     Rex     v.     Pep- 

4  Bl.  Com.    298,    299;  2  Hale,   P.  C.  per,    Comb.     298     (1095);     Rex     v. 

120.     See    Ex  parte  Bryant,  34  Ala.  Delaniere,    Comb.    0  (1085);   Reg.  v. 

270  (1859)  ;   State  v.  McNab,  20  N.  H.  Barthelemy,  Dears.   C.  C.  GO  (1852)  ; 

160  (1849);    State  v.  Rockafellow,  6  Reg.    v.   Barronet,    Dears.    C.    C.    51 

N.J.  L.  (1  Halst.)  332  (1796)  ;  People  (1852)  ;  s.c.  1  El.   &  B.  1 ;  Harvey's 

V.   Van  Home,   8  Barb.    (N.   Y.)    158  Case,    10   Mod.    334    (1716);    Rex    i-. 

(1850)  ;  People  r.  Dixon,  4  Park.  Cr.  Higgins,  4  0.  S.  U.  C.  83  (1835)  ;  Rex 

Cas.    (N.    Y.)    651    (1856);  People  v.  r.  Yates,  1  Show.  190  (1692)  ;  Danby's 

Hyler,  2  Cr.  Cas.  (N.  Y.)  570  (1855)  ;  Case,  Skin.  56  (1683)  ;  Rex  v.  Wynd- 

State    r.  Hill,  3  Brev.   (S.  C.)  L.  89  ham,  1  Strange,  2  ;  s.c.  16  Eng.L.  &  Eq. 

(1812);   s.c.   1   Tread.  (S.  C.)   Const.  361  (18.52);  Ferrington's  Case,  T.Jones 

242;    United     States    v.    Hamilton,   3  222  (1683)  ;  Stafford's  Case,  T.  Raym. 

U.    S.   (3  Dall.)    17   (1795),  bk.  1   L.  381    (1681)  ;   Watson's    Case,  1   Salk. 

od.  490;   United   States  r.  Stewart,  2  106    (1701);    Anonymous,   LofEt.  281 

U.S.  (2  Dall.)  343  ri795),  bk.  1  L.  (1773). 
ed.   502  ;    United    States   v.   Burr,    1 
316- 


SEC.  280.] 


BAIL   IN   HOMICIDE   CASES. 


317 


the  proceedings  until  the  prisoner  was  finally  committed 
in  execution.^  This  discretion  was  originally  vested  in  the 
court  of  King's  Bench,  but  is  now  supposed  to  be  extended 
to  the  Queen's  Bench  Division  of  the  Iligli  Court  of  Justice 
and  to  be  vested  in  the  courts  thereof  in  vacation."^ 

Sec.  280.  American  doctrine.  —  The  general  rule  that 
the  defendant  shall  be  admitted  to  bail,  as  a  matter  of  right 
in  all  cases,  including  all  degrees  of  homicide,  except  when 
the  charge  is  for  a  capital  offence,  the  proof  of  wliich  is  evi- 
dent, or  the  i^resumption  great.'^  In  many  of  the  states  of  the 
Union  this  right  is  often  guaranteed  by  constitutional  pro- 


1  20  Cent.  L.  J.  264.  , 

2  See  Rex  v.  Danby,  2  Show.  335 
(1085)  ;  4  Bl.  Comm.  299. 

In  Canada  a  prisoner  charged  witli 
murder  may  in  some  cases  be  admitted 
to  bail ;  and  on  such  an  application 
the  court  may  look  into  the  informa- 
tion, and  if  they  find  good  ground  for 
a  charge  of  felony,  may  remedy  a 
defect  in  a  commitment  by  charging 
a  felony  in  it.  Ilex  v.  Higgins.  4  Up. 
Can.  K.  B.  83  (1835). 

3  See  Ex  parte  Acree,  63  Ala.  234 

(1879)  ;  Ex  parte  White,  9  Ark.  222 
(1848)  ;    Ex  parte   Wolff,   57   Cal.  94 

(1880)  ;  People  v.  Tinder,  19  Cal.  539 
(1802)  ;  State  v.  Wicks,  R.  M.  Charlt. 
(Ga.)  139  (1822)  ;  Lynch  v.  People, 
38  111.  494  (1865)  ;  Ex  parte  Kendall, 
100  Ind.  599  (1884)  ;  Ex  parte  Hock, 
68  Ind.  200  (1879)  ;  Ex  parte  Suther- 
lin,  56  Ind.  595  (1877)  ;  Ex  parte 
Moore,  30  Ind.  197  (1808)  ;  Ex  parte 
Heffren,  27  Ind.  87  (1860);  Baldwin 
V.  Westenhaver,  75  Iowa,  547  (1888)  ; 
s.c.  39  N.  W.  Rep.  882 ;  Hiijht  v.  United 
States,  Morr.  (Iowa)  407  (1845)  ;  s.c. 
43  Am.  Dec.  Ill;  Lumm  v.  State,  3 
Ind.  293  (1852)  ;  In  re  Malison,  36 
Kan.  725  (1887)  ;  Ullery  v.  Common- 
weath,  8  B.  Mon.  (Ky.)  3  (1848); 
Ready  v.  Commonwealth,  9  Dana 
(Ky.)  38  (1839)  ;  State  v.  Brewster, 
.35  La.  An.  605  (1883);  State  v.  Brusle, 
34  La.  An.  61  (1882)  ;  Territory  v. 
Benoit,  1  Mart.  (La.)  142  (1810)  ; 
State  r.  Hart  well,  .35  Me.  129  (1853)  ; 
Yaner  v.  People,  34  Mich.  290  (1876); 


Ex  parte  Floyd,  60  Miss.  913  (1883); 
Exjiarte  Bridewell,  57  Miss.  39  (1879); 
Ex  parte  Fortenberry,  53  Miss.  428 
(1876)  ;  Beall  v.  State,  39  Miss.  715 
(1801)  ;  Moore  v.  State,  36  Miss.  137 
(1858)  ;  Shore  v.  State,  6  Mo.  640 
(1840)  ;  State  v.  Rockafellow,  6  N.  J. 
L.  (1  Ilalst.)  332  (1796);  Territory 
V.  MuUin,  3  N.  Y.  Leg.  Obs.  210 
(1844)  ;  People  v.  Perry,  8  Abb. 
(N.  Y.)  Pr.  N.  S.  27  (1870)  ;  People 
V.  Shattuck,  6  Abb.  (N.  Y.)  N.  C.  33 
(1878);  People  v.  Lohman,  2  Barb. 
(N.  Y.)  450  (1848)  ;  Ex  parte  Tayloe, 
5  Cow.  (N.  Y.)  39  (1825)  ;  People  v. 
Cole,  6  Park.  Cr.  Cas.  (N.  Y.)  695 
(1868)  ;  People  v.  McLeod,  25  Wend. 
(N.  Y.)  483  (1841)  ;  s.c.  .37  Am.  Dec. 
328 ;  Goodwin's  Case,  5  City  Hall 
Rec.  (N.  Y.)  11  (1820);  State  ?-.  Dew, 
1  Tayl.  (N.  C.)  142  (1798);  State  v. 
Summons,  19  Ohio,  139  (1850);  Com- 
monwealth V.  Keeper  of  Prison,  2 
Ashm.  (Pa.)  227  (1838);  Common- 
wealth V.  Lemley,  2  Pittsb.  (Pa.)  362 
(1862)  ;  State  v.  Hill,  3  Brev.  (S.  C.) 
L.  89  (1812)  ;  Moore  v.  State,  31  Tex. 
572  (1809);  Ex  parte  Cooper,  31  Tex. 
185  (1868)  ;  In  re  Smith,  26  Tex.  App. 
1.34  (1888);  s.c.  9  S.  W.  Rep.  359; 
Thompson  v.  State,  25  Tex.  (Supp.) 
395  (1860);  Ex  parte  O'Connor,  22 
Tex.  App.  660  (1887)  ;  s.c.  3  S.  AV. 
Rep.  340;  Ex  parte  Allen,  22  Tex. 
App.  201  (1886)  ;  s.c.  2  S.  AV.  Rep. 
588;  Ex  parte  Bryant,  21  Tex.  App. 
6.39  (1886)  ;  s.c.  2  S.  W.  Rep.  891  ; 
Ex  parte  Coldiron,  15  Tex.  App.  465 


318  HOMICIDE.  [chap.  XII. 

visions,  varying  in  phraseology,  but  all  of  the  same  general 
import.^ 

A  person  charged  with  murder  in  the  first  degree'  is 
entitled  to  be  let  to  bail  where  the  proof  is  not  evident  and 
the  presumption  is  not  great.^ 

Upon  an  application  by  a  person  charged  with  murder,  to 
be  admitted  to  bail,  it  appeared  that  the  prisoner  and  the 
deceased,  being  friends  between  whom  there  liad  been  no 
previous  difficulty,  met  in  a  saloon  where  they  became  intoxi- 
cated and  fell  into  a  dispute.  The  prisoner  became  excited 
and  angry,  and  attempted  to  go  out;  when  the  deceased, 
much  the  stronger  man,  perpetrated  repeated  personal  vio- 
lence and  indignity  upon  the  prisoner,  sufficient  to  provoke 
him  to  extreme  anger.  The  jarisoner,  greatly  excited,  es- 
caped at  length  from  the  deceased,  hastened  to  his  own  house, 
a  short  distance,  and  without  being  absent  more  than  five  min- 
utes, returned  with  a  revolver,  with  Avhich  he  immediately 
shot  and  killed  the  deceased.  The  court  held  that  it  was  not 
clear  that  there  was  sufficient  time  between  the  provocation  and 
the  act  for  passion  to  cool  and  reason  to  resume  control,  or  that 
the  killing  was  malicious,  and  that  bail  should  be  taken.-^ 

In  re  Smith  *  the  deceased  was  shot  from  ambush,  and  killed, 
at  midnight,  while  being  conveyed  to  jail.  According  to  his 
dying  declarations,  he  recognized  the  relators  by  the  flash  of 
their  guns,  and  previous  ill  feeling  between  them  and  the  de- 

(1884);    Ex  parte   Beacom,    12   Tex.  1859,  Bill  of  Rights,  §  9;  Const.  Ky. 

App.    318    (1883);  Ex  parte  Riiiulon,  1850,    art.   XIII.    §    18;    Const.    La. 

l:i  Tex.  App.  145  (1883);  /«?■«  Foster,  1808,  tit.  I.  art.  7;  Const.  Me.  1820, 

6    Tex.    App.   625    (1879);    Webb    v.  art.  I.  §  10;    Const.    Mich.  1850,  art. 

State,  4  Tex.  App.  167  (1879);  Green  VI.    §    29;  Const.  Miss.  1868,  art.  I, 

V.  Commonwealth,  11  Lei,i,^h  (Va.)  667  §  8;    Const.  Mo.  1875,  art.  II.  §  24; 

(1841);  /nrePerry,  19  Wis.  676(1865);  Const.   Neb.  1875,  art.  I.  §  9  ;  Const. 

United   States  v.  Stewart,  2  U.  S.  (2  Nev.    1864,  art.  I.  §  7  ;    Const.  N.  J. 

Dall.)  343  (1795)  ;  bk.  1  L.  ed.  502.  1844,  art.  I.  §  10;  Const.  Ohio,  1851, 

1  See  UUery   v.  €ommonwealth,  8  art.  I.   §9;  Const.  Oreg.   art.  I.  §  14, 

B.   Mon.    (Ky.)    3    (1848);    Ready   r.  Const.  Pa.   1873,  art.  I.  §  14 ;  Const. 

Commonwealth,    9    Dana     (Ky.)    38  R.  I.  1842,  art.   I.  §  9;    Const.  S.  0. 

(1839)  ;  Const.  Ala.   1875,  art.  I.  §  17 ;  1868,  art.  I.  §  16  ;  Const.  Tenn.   1870  ; 

Const.  Cal.  1879,  art.  I.  §  6;  Const,  art.  I.  §  15;  Const.  Vt.  179.3,  c.  II.  §  3.3. 

Colo.  1876,  art.  I.  §  19;  Const.  C(mn.  2  /,;  ,.g  Malison,  36  Kan.  725  (1887); 

1818,  art.   I.  §  13;    Const.  Del.  1831,  s.c.  14  Pac.  Rep.  144. 

art.  I.  §   12;  Const.  Fla.  1868,  art.  I.  3  Ex    parte    Moore,    30    Ind.     197 

§  8;    Const.   111.    1870,  art.   II.   §   7  ;  (1868). 

Foley  f.People.Brecse  (111.)  31  (1822);  ^26  Tex.  App.  134  (1888);   s.c.  9 

Const.  Ind.  art.  I.  §  17 ;  Const.  Kan.  S.  W.  Rep.  359. 


SEC.  282.]  BAIL   IN   HOMICIDE   CASES.  319 

ceased,  and  threats  b}^  one  of  them  were  shown.  A  hat, 
wliich  a  witness  testified  he  gave  to  one  of  the  rehitors  a  few 
days  before,  was  found  near  the  scene  of  the  killing.  The 
officer  in  charge  of  the  deceased  saw  no  one  near  the  place  from 
which  the  shots  were  fired,  and  the  next  morning  he  found 
the  tracks  of  but  one  person  in  the  neighborhood.  On  appeal 
it  was  held  that  the  court  erred  in  refusing  bail  to  relators. 

Sec.  281.  Same  —  Texas  doctrine.  —  Under  the  provisions 
of  the  constitution  of  Texas  that  all  prisoners  shall  be  bail- 
able "  unless  for  capital  offences  when  the  proof  is  evident,"  ^ 
in  the  following  cases,  defendants  indicted  for  murder  have 
been  admitted  to  bail :  Where  the  deceased  was  killed  in  a  fight 
between  himself  and  two  others  on  one  side  and  the  defendant 
and  his  father  on  the  other,  and  the  fight  was  brought  on  by 
the  deceased  and  his  party ,^  where  the  deceased  had  provoked 
the  quarrel  with  the  defendant,  and  dared  him  to  cross  a 
mark  which  he  made  on  the  ground,  and,  on  his  advancing, 
struck  at  him  with  a  dangerous  weapon,  whereupon  the  defend- 
ant cut  the  deceased  with  his  knife,  inflicting  Avounds  from 
which  he  died ;  ^  where,  upon  an  indictment  for  murder  of  an 
infant,  by  wilfully  permitting  it  to  starve,  there  was  evidence 
tending  to  show  that  the  child  might  have  died  from  being  fed 
on  impure  milk ;  *  and  where  the  evidence  showed  a  murder, 
but  not  that  the  deceased  was  the  man  for  whose  murder 
the  defendant  was  indicted,  nor  that  the  defendant  was  con- 
nected with  the  homicide.^ 

Sec.  282.  When  bail  refused.  —  It  has  been  laid  down 
that  where  the  crime  is  of  the  highest  magnitude  and  the 
evidence  in  support  of  the  charge  strong,  and  the  punishment 
the  highest  known  to  the  law,  the  court  will  not  generally 
interfere  to  admit  to  bail.'^  Bail  is  said  by  Hawkins '  to*  be 
proper  only  when  it  stands  indifferent  whether  the  party  is 
guilty  or  innocent  of  the  accusation  against  him,  as*  it  often 

1  Bill  of  Rights,  §  11.  6  Ex  parte  Randon,  12    Tex.  App. 

2  Ex  parte  Bryant,   21    Tex.    App.     146  (1883).    ' 

639  (1886)  ;  s.c.  2  S.  W.  Rep.  891.  e  Ex  parte  Barronet,  1  El.  &  Bl.  1 

3  Ex  parte  Allen,  22  Tex.  App.  201     (1852)  ;  s.c.  72  Eng.  C.  L.  1. 
(1886) ;  s.c.  2  S.  W.  Rep.  588.  "  1  Hawk.  bk.  2,  c.  15,  §  20. 

*  Ex  parte  O'Connor,  22  Tex.  App. 
660  (1887)  ;  s.c.  3  S.  W.  Rep.  340. 


320  HOMICIDE.  [chap.  XII. 

does  before  the  trial ;  but  where  the  indifference  is  removed 
it  would  be  abusive  to  bail.^ 

Sec.   283.    Murder  in    first  degree  —  Bailable    when.  — 

While  it  is  true  that  all  courts,  proceeding  according  to 
the  course  of  the  common  law,  have  a  discretionary  power  to 
grant  bail  in  all  cases,  including  murder  in  the  first  degree, 
yet,  in  the  absence  of  extraordinary  circumstances,  or  special 
reasons,  it  will  not  be  granted.^  This  power  will  not  be  exer- 
cised in  either  of  the  following  cases  :  (1)  Where  it  appears 
to  the  judge  from  evidence  before  indictment  that  there  is 
probable  cause  for  allowing  the  prisoner  to  answer  to  the 
crime  of  murder;^  (2)  Where  he  has  confessed  the  crime;* 
(3)  Where  the  proof  is  evident,  or  the  presumption  great, 
that  he  committed  the  crime ;  ^  and  (4)  where  an  indictment 
been  has  found  by  the  grand  jury  for  the  crime  charged.*^ 

In  those  states  where  murder  is  by  statute  divided  into  two 
or  more  degrees,  the  first  degree  alone  being  capital,  every 
person  charged  with  murder  is  entitled  to  bail  unless  the 
proof  is  evident  or  the  presumption  great,  that  the  crime 
is   murder   in    the   first  degree."      Where    the   crime   is   not 

1  This  rule  is  approved  in  Ex  parte  Eex  v.  Higgins,  4  U.  C.  (0.  S.)  83 
Tayloe,  5    Cow.   (N.  Y.)    39    (181^5);     (1835). 

People  V.  Goodwin,  1  Wheel.  Cr.  Gas.  ^  Territory  v.  Benoit,  1  Mart.  (La.) 

(N.  Y.)  253  (1820).  142    (1810)  ;     People    v.   McLeod,    1 

2  See  Whitham  v.  Button,  Gomo.  Hill  (N.  Y.)  .377  (1841^  ;  State  v. 
Ill  (1689);  Herbert's  Case,  Latch.  Mills,  2  Dev.  (X.  G.)  L.  420,  421,  422 
12  (1625)  ;  Barney's  Case,  5  Mod.  323  (1830)  ;  Reg.  v.  Chapman,  8  Gar.  & 
(1698).  P.  558    (1838)  ;   Reg.   v.   Andrews,   2 

3  Reg.  f.  Barthelemy,  Dears.  60  Dowl.  &  L.  10  (1814)  ;  Mohun's  Case, 
(1852)  ;  In  re  Barronet,  1  El.  &  Bl.  1  1  Salk.  104  (1698>  ;  1  Burr's  Trial, 
(1852)  ;  s.c.  72  Eng.  G.  L.  1 ;  Dears.  306,  312. 

G.    C.  51 ;    anonymous,    1    Salk.    104  "  Ex  parte   Vaughan,  44   Ala.  417 

(1700);    Rex  v.  Garter,  W.  Kel.  159  (1870);  A-.r /)«?/«  Bryant,  34  Ala.  270, 

(1784).  277   (1859);  Ex  parte  Banks,  28  Ala. 

■*  State    V.    Abbot,    R.    M.    Gliarlt.  89,  99  (1856)  ;  Ex  parte  McCrary,  22 

(Ga.)  244p822)  ;    In  re  Barronet,  1  Ala.  65  (1853)  ;  Ex  parte  Groom,  19 

El.  &  Bl.  1  (1852)  ;  s.c.  72  Eng.  G.  L.  Ala.  561   (1851 1  ;  Ex  parte  Wolff,  57 

1.     Compare  Rex  v.  Higgins,  4  U.  C.  Gal.  94    (1880);    Finch   v.   State,   15 

(O.  S.)  83  (1835).  Fla.  634   (1876)  ;  State  v.  Klingman, 

5  Territory  ?-.  Benoit,  I  Mart.  (La.)  14   Iowa,  404,  408   (1802)  ;    Shore  v. 

142  (1810);  People  v.  Perry,  8  Abb.  State,  6  Mo.  640  (1840).     See  Drury 

(X.  Y.)  Pr.  N.  S.  27,  .30  (1870).     But  v.  State,  25  Tex.  45  (1860)  ;   McCoy 

where    the  evidence    fails  to  disclose  r.  State,  25  Tex.  33  (1860)  ;    Thomp- 

such  probable  guilt  bail  will  be  granted,  son   v.    State,   25    Tex.    (Supp.)    395 

(1860). 


SEC.  284.]  BAIL   IN   HO]\nCIDE  CASES.  321 

divided  into  degrees,  or  where  murder  in  the  second  degree 
is  made  non-bailable  by  statute  or  otherwise,  the  inquiry 
should  be  as  to  whether  the  facts  amount  to  murder, 
that  is,  whether  the  killing  was  done  with  malice  express  or 
implied.^ 

Sec.  284.  Jurisdiction  to  admit  to  bail.  —  It  is  thought 
that  jurisdiction  to  hear  and  determine  accusations  of  crime 
necessarily  includes  power  to  discharge  persons  found  impris- 
oned on  such  accusations.  Consequently  any  court  having 
jurisdiction  to  try  the  charge  against  the  prisoner  has  juris- 
diction to  discharge  him  from  imprisonment  or  to  admit  him 
to  bail ;  ^  and  those  superior  courts  which  have  a  superintend- 
ing jurisdiction  over  inferior  tribunals  may  inquire  into  the 
legality  of  commitments  made  by  such  tribunals,  examine 
into  the  grounds  upon  which  persons  have  been  committed 
upon  charges  of  crime,  and  recommend  discharge  or  admit 
them  to  bail  as  the  circumstances  of  each  particular  case 
may  require.  Judge  Thompson  says^  that  the  doctrine  of 
unlimited  power  to  bail  may  be  traced  through  all  the  author- 
ities which  consider  the  extent  of  this  power  as  possessed  by 
the  court  of  King's  Bench,*  and  by  those  American  courts 
which  possess  the  same  jurisdiction  in  this  regard  as  the 
court  of  King's  Bench.^ 

1  Ex  parte  Wray,  30  Miss.  673  (1695^ ;  Witliam  v.  Button.  Comb. 
(1856);  Ex  parte  Moore,  30  Ind.  197  111  (1689);  Note  to  Page  i:  Price 
(1868).  3   Salk.    67   (1691);    Roe's    Case,    5, 

2  People  V.  Van  Home,  8  Barb.  Mod.  78  (1696) ;  Rex  ?•.  Kendal, 
(N.  Y.)  158  (1850)  ;  People  v.  .Jefferds,  1  Salk.  .347  ;   Watson's  Case,  1  Salk. 

5  Park.  Cr.  Cas.  (N.  Y.)  518  (1861);  106  (1701);  Mohun's  Case,  1  Salk. 
People  r.  Goodwin,  1  Wheel.  Cr.  Cas.  103  (1698)  ;  Danby's  Case,  Skin.  56 
(N.  Y.)  434,  436  (1820)  ;  State  v.  Hill,  (1683)  ;  Rex  r.  Wyndham,  1  Str.  2 
3  Brev.  (S.  C.)  89  (1812);  Rex  v.  (1715);  Farrington's  Case,  T.  Jones, 
Delamere,  Comb.  6  (1685).  222  (1683)  ;  Stafford's  Case,  T.  Raym. 

3  6  Cr.  L.  Mag.  3.  .381  (1680)  ;  Rex  v.  Higgins,  4  U.  C. 

4  See  Street  r.  State,  43  Miss.  1  (O.  S.)  83  (1835)  ;  4  Bl.  Comm.  299; 
(1871);  Rex  v.  Morgan,  1    Bulst,  84  Coke's  Entries,  354,  350. 

(1611) :    Rex    v.    Lord    Baltimore,   4  5  gee  State  r.  Abbot,  R.  M.  Cliarlt. 

Burr.2179.(1768);Reg.  c.  Bartbelemy,  (Ga.)  244  (1822);    Lynch  v.  People, 

Dears.  C.  C.  60  (1852)  ;  Rex  v.  Marks,  38  111.  494   (1865)  ;    State  v.  McNab, 

3  East,  157  (1802)  ;  Re  Barronet,  1  EI.  20  N.  H.  100  (1849)  ;  State  v.  Rocka- 

6  Bl.  1  (1852) ;  s.r.  Dears.  C.  C.  51;  fellow,  6  N.  J.  L.  (1  Halst.)  332,  .348 
22  L.  J.  M.  C.  25 ;  Herbert's  Case,  Lat.  (1796)  ;  People  r.  Van  Home,  8  Barb. 
12  (1625)  ;  Harvey  Case,  10  Mod.  .334  (N.  Y.)  158,  165  (1850)  ;  People  r. 
(1716)  ;    Rex   v.   Pepper,   Comb.   298  Cole,  6  Park.  Cr.  Cas.  (X.  Y.)  695,  702 

21 


322  HOMICIDE,  [chap.  XII. 

Sec.  285.  Granting  bail  after  indictment.  —  In  the  Eng- 
lish courts  the  practice  is  to  refuse  to  hear  proof  to  rebut  the 
presumption  of  guilt  created  by  an  indictment.  That  prac- 
tice is  followed  by  many  of  the  courts  in  this  country.  Thus 
upon  the  application  of  Aaron  Burr,  who  was  indicted  for 
treason,  Chief  Justice  Marshall  refused  bail  and  thought 
that  proof  to  rebut  the  presumption  raised  against  tlie  defend- 
ant by  the  finding  of  the  grand  jury  was  inadmissible  although 
before  indictment  he  had  admitted  the  prisoner  to  bail.^  In 
some  of  the  states  a  different  rule  prevails.  Thus  in  Indiana 
since  the  decision  in  the  case  of  Lumm  v.  State,^  the  practice 
has  been  to  hear  the  evidence  after  indictment  and  to  let  to 
bail  upon  proof  that  the  prisoner  was  guilty  of  a  bailable 
offence,  or  upon  his  showing  that  the  "  proof  was  not  evident 
or  the  presumption  strong,"  that  he  was  guilty  of  a  non-bail- 
able offence.'^ 

Sec.  286.  Cause  for  admission  to  bail  —  Sickness  and 
disease.  —  It  Is  considered  good  reason  for  admission  to  bail 
that  the  defendant  has  a  present,  painful,  severe,  and  danger- 
ous disease,  which  is  likely  to  endanger  his  life  if  he  is  kept 
in  confinement;*  and  in  some  states  it  has  become  a  rule 
that  a  prisoner  under  indictment  for  a  capital  offence  will  be 
admitted  to  bail,  unless  he  is  brought  to  trial  within  a  cer- 
tain specified  time.^  But  it  is  thought  that  this  is  no  ground 
for  admission  to  bail,  unless  the  continuance  will  operate 
oppressively  upon  the  prisoner.^ 

(1868)  ;    People    v.    Cunningham,    3  ^  gee  Ex  parte  "Wray,  .%  Miss.  673 

Park.  Cr.   Cas.    (N.  Y.)  520  (1857)  ;  (1856)  ;  State  v.  Summons,  lU   Ohio, 

People    V.    Hyler,   2    Park.   Cr.   Cas,  139  (1850). 

(N.  Y.)  570  (1855)  ;  Matter  of  Good-  *  People  v.  Cole,  6  Park.  Cr.  Cas. 

hue,  1  Wheel.  Cr.  Cas.    (N.  Y.)  427  (N.  Y.)  695  (1868)  ;  Archer's  Case,  6 

(1815);  States.  Hill,  3  Brev.  (S.  C.)  Gratt.  (Va.)  705    (1849);    Common- 

89(1812);  s.c.  1  Tread.  (S.  C)  242 ;  wealth   v.   Semmes,    11    Leigh    (Va.) 

Ex  parte  Gilehrist,  4  McC.  (S.  C.)  233  665  (1841)  ;    United    States  v.  Jones, 

(1827);     Case    of    Jefferson    Davis,  3  Wash.  C.  C.  224   (1813).     See  Les- 

Chase's  (U.  S.)  Dec.  1,  49  (1871).  ter    v.    State,    33    Ga.    192    (1862)  ; 

1  See    Hight    v.   United    States,   1  Thomas  y.  State,  40  Tex.  6  (1874). 

Morris   (Iowa)  407  (1845)  ;  Territory  ^  See  Ex  parte  Carroll,  .36  Ala.  300 

V.  Benoit,   1   Mart.  (La.)   142  (1810)  ;  (i860);   Ex  parte  Croom,  19  Ala.  561 

State  V.   Mills,  2  Dev.  (N.  C.)  L.  421  (1851);  Ex  parte    Stiff,  18  Ala.  464 

(18.30);     United    States    v.   Jones,    3  (1850);   Ex  parte    Simonton,  9  Port. 

Wash.  C.  C.  224  (1813).  (Ala.)  .390  (18.39). 

23  Ind.  293  (1852).  ^^  State   v.    Abbot,    R.    M.    Charlt. 


SIX".  286.]  BAIL    IX    HOMICIDE   CASES.  328 

Slight,  or  even  considerable  sickness  will  not  furnish  a 
sufficient  ground  to  justify  letting  a  person  to  l)ail  who  is 
confined  on  the  charge  of  homicide  ;  because  there  are  few 
persons  whose  health  will  not  be  injuriously  affected  by  con- 
finement. There  must  be  strong  grounds  for  apprehending 
permanent  impairment  of  health  or  a  fatal  result.^  In  the 
case  of  United  States  v.  Kie  ^  the  defendant  was  confined  on 
a  charge  of  murder  and  asked  for  bail  on  the  ground,  among 
others,  of  sickness,  and  presented  a  certificate  of  a  surgeon 
of  the  United  States  Navy  to  the  effect  that  he  was  suffering 
from  a  serious  disease  accompanied  by  derangement  of  the 
heart's  action,^  and  much  constitutional  debility.  The  court 
refused  the  application  giving  the  following  as  the  reason  for 
so  doing ;  the  court  say :  "  There  is  undoubtedly  evidence 
before  the  court  to  the  effect  that  the  prisoner  is  suffering 
from  a  painful  disease,  and  that  his  confinement  may  have 
increased  it ;  it  is  also  probable,  and,  no  doubt,  this  disease, 
and  the  confinement  he  has  undergone,  may  have  weakened 
him  somewhat ;  but  there  is  no  evidence  that  the  prisoner  is 
in  such  a  condition,  either  of  body  or  mind,  that  the  court 
should  look  upon  this  as  an  exceptional  case.  As  I  before 
remarked,  the  question  presented  is  a  serious  one,  and  not 
free  from  difiiculty ;  and  if  the  evidence  before  me  had  sus- 
tained the  allegations  in  the  petition,  and  it  had  been  shown 
to  my  satisfaction  that  the  prisoner  was  in  such  a  physical 
condition  that  further  confinement  might  seriously  affect  him 
in  body  and  mind,  and  possibly  bring  about  his  death,  I  would 
unhesitatingly  grant  the  prayer  of  the  petition,  and  admit  the 
prisoner  to  bail ;  but,  from  the  evidence  before  me  in  support 
of  this  allegation,  and  from  ray  own  knowledge  of  the  physi- 


(Ga.)  244  (1822).     See  Reg.  v.  An-  The  Texas  statute  admits  a  prisoner 

(Irews,  2  Dowl.  &  L.    10  (1844) ;  s.c.  to  bail,  in  cases  otlierwise  not  baila- 

1  New  Sess.  Cas.  199.  ble,  "  when   it   appears   that  any  spe- 

1  Ex  parte   Pattison,  56    Miss.   IHl  cies  of  confinement  will  cndarirer  his 

(1878)  ;  Harvey   &   Comb's  Case,  10  life."   Pasch.  Dig.  Tex.  St.  2009.    See 

Mod.  334  (1710)  ;  Kirk's  Case,  5  Mod.  Thomas  v.  State,  40  Tex.  6  (1874). 

454(1700)  ;  Cow/iare  Lester  y.  State,  38  24  ^Yest   Coast  Rep.    553    (1885); 

Ga.  192  (1862);  People  v.  Cole,  6  Park.  s.c.  20  Cent.  L.  J.  103. 

Cr.   Cas.    (N.  Y.)    695,   701    (1868)  ;  3  "  Heart  disease,"  it   seems,  is  not 

Archer's    Case,    6    Gratt.    (Va.)    705  a  ground  for  letting  to  bail.   See  Lester 

(1849);  Rex  v.  Wvndham,  1    Stra.  2  v.  State,  33  Ga.  192  (1862). 
4  (1715). 


324  HOMICIDE.  [chap.  XII. 

cal  and  mental  condition  of  the  prisoner,  I  am  of  the  opinion 
that,  under  the  circumstances,  this  said  prisoner,  Charles  Kie, 
has  neither  been  confined  an  unreasonable  time  awaiting 
trial,  nor  is  he  at  the  j)resent  time  in  such  a  condition,  either 
i:)hvsically  or  mentally,  as  to  cause  the  court  to  exercise  its 
power  under  the  statute,  and  admit  him  to  bail." 

Sec.  287.  What  inquired  into.  —  On  letting  to  bail  the 
court  ought  not  to  look  farther  than  to  the  nature  of  the 
offence  and  the  strength  of  the  evidence  in  support  of  it. 
Neither  the  charaQter  of  the  prisoner  nor  his  relations  or  situ- 
ation in  life  can  be  taken  into  consideration  in  determining 
the  probability  of  his  appearing  for  trial.^ 

It  is  said  in  the  case  of  Keg.  v.  Mullady,^  however,  "  that 
on  an  application  by  prisoners  in  custody  on  a  charge  of  mur- 
der, under  a  coroner's  warrant,  to  be  admitted  to  bail,  it  is 
proper  to  consider  the  probability  of  their  forfeiting  their 
bail  if  they  know  themselves  to  be  guilty.  Where  in  such 
case  there  is  such  a  presumption  of  tlie  guilt  of  the  prisoners 
as  to  warrant  a  grand  jury  in  finding  a  true  bill,  they  should 
not  be  bailed.  The  fact  of  one  assize  having  passed  over 
since  the  committal  of  the  prisoners,  without  an  indictment 
having  been  preferred,  is  in  itself  no  ground  for  bail.  The 
application  is  one  of  discretion  and  not  of  right,  the  prisoners 
not  having  brought  themselves  within  the  statute  ^  by  apply- 
ing on  the  first  day  of  the  assize  to  be  brought  to  trial. 

Sec.  288.  Proof  of  j?uilt  —  When  justifies  refusal  of 
bail.  —  One  indicted  is  presumed  to  be  guilty  as  charged  in 
the  indictment,'*  consequently  an  indictment  is  generally 
regarded  as  creating  a  presumption  against  the  right  to  bail.^ 
The  question  as  to  the  sulfieiency  of  the  proof  of  the  defend- 
ant's guilt  to  warrant  a  refusal  of  bail  is  one  to  be  decided  by 
the  court  to  which  the  application  is  made,  according  to  the  cir- 
cumstances of  each  particular  case.     It  has  been  sometimes 

1  In  re  RoLinson,  23  L.  J.  Q.  R.  28G  (1870);   Holley  i-.  State,  15  Fla.  688 

(1854).  (1870)  ;    Finch    v.  State,  15  Fla.  634 

M  Up.  Cin.  V    U.  31 1.  (1876);   Ex  parte  Jones,  55  Ind.   176 

3  31  Car.  II.  c.  2,  §  7.  (1876);  Ex  parte  Colter,  35  Ind.  109 

*  See   Ex   pane  Vauglian,  44  Ala.  (1871)  ;  Ex  parte  Heffren,  27  Ind.  87 

417  (1870).  (1866)  ;  People  v.  Goodwin,  1  Wheel. 

^  Ex  parte   Vauglian,  44   Ala.   417  Cr.  Cas.  (N.  Y.)  434,436  (1820). 


SEC.  289.]  BAIL   IN   HOMICIDE   CASES.  325 

held  that  an  indictment  for  a  capital  offence  is,  of  itself,  suffi- 
cient proof  of  defendant's  guilt  to  preclude  any  inquiry  into 
the  merits  on  an  application  for  bail,i  except  under  special 
and  extraordinary  circumstances  ;  ^  but  the  weight  of  author- 
ity is  clearly  to  the  effect  that  an  indictment  does  not  raise 
such  a  presumption  of  guilt  as  will  absolutely  preclude  the 
court  from  going  behind  the  indictment  and  investigating  the 
merits  of  the  charge  with  a  view  to  ascertaining  whether 
the  accused  is  entitled  to  bail ;  ^  and  the  prisoner  may  have 
a  writ  of  habeas  corpus  as  a  matter  of  right.*  But  the  supreme 
court  of  Arkansas  say  in  AVhite's  Case  ^  that  to  entitle  a  per- 
son under  indictment  for  a  capital  offence  to  a  writ  of  habeas 
corjms  on  an  application  for  bail,  he  must  state  facts  in  his 
petition  under  oath  which  will  rebut  the  presumption  raised 
against  him  by  the  indictment. 

Sec.  289.  Same  —  Burden  on  defendant  to  show  guilt 
not  evident.  —  The  defendant  has  the  burden  to  show  that 
the  proof  of  his  guilt  is  not  evident,  nor  the  presumption 
great,  —  as  an  indictment  for  a  capital  homicide  implies  prima 
facie  that  no  right  to  bail  exists,*^ — and,  in  order  to  show  this, 
he  must  produce  the  evidence  on  which  the  prosecution  will 
rely  for  conviction.'  But  he  need  not  affirmatively  prove  his 
innocence  by  other  evidence  ;  and  he  is  entitled  to  bail,  unless 
the  evidence,  taken  as  a  whole,  satisfies  the  court  that  his 

1  People  V.  Tinder,  19  Cal.  539  494  (1865) ;  Lumm  v.  State,  3  Ind, 
(1802);  Hight  I'.  United  States,  Morris  293  (1852);  Commonwealth  v.  Lem- 
(lowa),  407  (1845)  ;  s.c.  43  Am.  ley,  2  Pitts.  (Pa.)  362  (1862).  See 
Dec.  Ill;  State  v.  Brewster  35  La.  ^r  pnr/e  Wolf ,  57  Cal.  94  (1880);  Ex 
An.  605  (1883);  State  v.  Brusle,  34  par^e  Hock,  68  Ind.  206  (1879) ;  People 
La.  An.  61  (1882);  People  v.  Sliat-  v.  Van  Home,  8  Barb.  (N.  Y.)  158 
tuck,  6  Abb.  (N.  Y.)  N.  C.  33  (1878);  (1850) ;  Yarbrough  v.  State,  2  Tex. 
People  V.  McLeod,  1  Hill  (N.  Y.),  377  523  (1847). 

(1841);    s.c.  25  Wend.   (X.  Y.)  483;  *  See  Ex  parte  Wolf,   57    Cal.   94 

37  Am.  Dec.  .328.  (1880) ;  State  v.  Wicks,  R.  M.  Charlt. 

2  People  V.  Tinder,  19  Cal.  579  (Ga.)  1.39  (1822) ;  Ex  parte  Hock,  08 
(1862)  ;  Hight  i-.  United  States,  Mor-  Ind.  206  (1879)  ;  Lumm  v.  State,  3 
ris  (Iowa),  407  (1845);  s.c.  43  Am.  Ind.  293  (1852)  ;  Commonwealth  r. 
Dec.  Ill;  State  v.  Brewster,  -35  La.  Lemley,  2  Pitts.  (Pa.)  362  (1862). 
An.  605  (1883);  People  v.  McLeod,  '->  Ex  parte  White,  9  Ark.  229 
1   Hill    (N.   Y.)    377    (1841);  s.c.    25  (1848). 

Wend.  (N.  Y.)  483;  37  Am.  Dec.  .328.  ^  Ej.  parte  Kendall,    100    Ind.   599 

3  J?.r;wrte  White.9  Ark.222  (1848);      (1884). 

State  V.  Wicks,   R.  M.  Charlt.   (Ga.)  ^  Ex    parte    Heffren,    27    Ind.    87 

139  (1822);  Lynch  v.  People,  38  111.     (1866). 


326  HOMICIDE.  [CHAPi  XII. 

guilt  is  apparent.!  He  may  base  liis  application  upon  affi- 
davits arising  from  the  testimony  on  which  the  charge  is 
founded,^  or  affidavits  tending  to  show  that  the  prosecution 
has  been  instituted  from  malice  or  mistake ;  ^  but  it  has  been 
held  that  affida\ats  taken  ex  parte  cannot  be  made  sufficient 
ground  for  proof  upon  which  to  admit  to  bail.* 

The  prisoner  may  overcome  the  presumption  which  the 
indictment  raises  against  his  right  to  bail  by  showing  either 
(1)  that  he  is  not  guilty  of  any  degree  of  felonious  homicide 
which  is  included  in  the  indictment,  or  (2)  that  he  is  not 
guilty  of  murder  in  the  first  degree,  Avhich  alone  is  capital 
by  the  statute  under  which  he  is  indicted.^  In  m.any  of  the 
states  the  accused  is  permitted  to  do  this  by  introducing  evi- 
dence de  novo,  overcoming  the  presumption  arising  from  the 
indictment,  and  showing  that  the  proof  of  his  guilt  is  not 
evident  and  that  the  presumption  is  not  great.^  In  deter- 
mining the  right  to  admit  to  bail  the  indictment  prima  facie 
furnishes  a  justification  for  the  imprisonment,  and  the  burden 
is  therefore  upon  the  prisoner  to  show  that  he  has  a  constitu- 
tional right  to  be  admitted  to  bail ;  in  other  words,  that  his 
guilt  is  not  evident  or  the  presumption  great  ;'^  and  if  he 
fails  to  introduce  evidence  to  overcome  this  presumption  bail 
should  be  refused.^ 

1  Ex  parte  Eandon,  12  Tex.    App.  378  (1881)  ;  Ex  parte  Hock,  68  Ind. 
145  (1883).  206    (1879)  ;    Ex  parte  Sutliorlin,  56 

2  Goodwin's  Case,  5  City  Hall  Rec.  Iiid.  595  (1877);  Ex  parte  Moore,  30 
(N.  Y.)  11  (1820).  Ind.  197  (1868)  ;   Ex  parte  Heffren,  27 

3  State  V.  Hill,  3  Brev.  (S.  C.)  L.  Ind.  87  (1866)  ;  Lumm  v.  State,  3  Ind. 
89  (1812).  293    (1852)  ;   Ex  parte  Bridewell,  57 

4  State  V.  Dew,  1  Tayl.  (N.  C.)  142  Miss.  39   (1879)  ;  Street  v.  State,  43 
(1798).  Miss.   1,  26  (1871);  Ex  parte  Wray, 

'"Ex  parte  Vaughan,  44    Ala.   417  30   Miss.  681   (1856);  Ex  parte  Kan- 

(1870)  ;  Finch    v.  State,  15  Ala.  633  don,   12  Tex.   App.   145    (1883)  ;    Ex 

(1846).  po;-^f  Bonar,9Tex.App.610(1881);£'a: 

6  Ex  parte    Vaughan,  44  Ala.  417  parte  Scoggin,  6  Tex.  App.  546  (1879). 

(1870)  ;  Ex  parte  Bryant,  34  Ala.  270,  Compare  Ex  parte  Mosby,  31  Tex.  566 

275  (1859)  ;  Ex  parte  Mahone,  30  Ala.  (1869).    Contra  Hight  v.  United  States, 

49   (1857);  Ex  parte   Banks,  28  Ala.  Morris  (Iowa),  407  (1845). 

89  (1856)  ;  Ex  parte  Kittrel,  20  Ark.  ^  Ex  parte   Vaughan,  44   Ala.  417 

435  (1859)  ;  Ex  parte  Good,  19  Ark.  (1870)  ;  Ex  parte  Heffren,  27  Ind.  87 

413  (1858);  Ex  parte  White,  9  Ark.  (1866). 

222  (1848)  ;  Holloy  i-.   State,  15  Da.  *  Ex  parte    Scoggin,  6   Tex.    App. 

688    (1876)  ;    Finch  v.  State,  15  Fla.  546  (1879). 
634   (1876)  ;    Ex  parte  Bare,  76  Ind. 


SEC.  290.]  BAIL   IN    HOMICIDE   CASES.  327 

Sec.  290.  Failure  of  jury  to  agree.  —  The  failure  of  a 
trial  jury  to  agree  is  a  proper  fact  to  be  shown  on  an  appli- 
cation for  bail  pending  a  motion  for  a  new  trial ;  ^  but  it 
does  not  follow  that  the  courts  wUl,  as  a  matter  of  course, 
admit  to  bail  because  the  jury  have  failed  to  agree.^  The 
rule  in  such  cases  has  been  said  by  the  supreme  court  of 
Ohio  3  to  be  that  if,  after  trial  and  disagreement,  on  applica- 
tion for  bail,  the  evidence  is  so  weak  that  it  would  not  sus- 
tain a  verdict  of  guilty  against  a  motion  for  a  new  trial,  the 
court  should  admit  the  prisoner  to  bail.  But  the  supreme 
court  of  Mississippi  say  in  Beall  v.  State,*  that  a  court  may 
admit  the  defendant  to  bail  in  such  a  case,  even  though  on  the 
evidence  the  jury  ought  to  have  rendered  a  verdict  of  guilty ; 
but  this  is  extreme  doctrine  and  not  thought  to  be  sound  law. 

It  has  been  said  that  a  miss-trial  may  be  regarded  as  an 
important  circumstance  in  an  application  for  admission  to 
bail,  because  it  tends  to  show  that  the  question  of  the  guilt 
or  innocence  of  a  prisoner  "  stands  indifferent."  ^  In  the  case 
of  People  V.  Goodwin,^  Justice  Spencer  says :  "  it  appears  to 
me  from  the  facts  before  me,  the  conclusion  is  inevitable  that 
it  is  quite  doubtful  whether  the  prisoner  is  guilty,  and  I  think 
it  stands  indifferent  whether  he  is  so  or  not.  I  must  pre- 
sume that  the  jurors  are  impartial,  and  that  their  final  agree- 
ment proceeded  from  a  conscientious  difference  of  opinion  as 
to  the  prisoner's  guilt,  and  I  am,  therefore,  bound  to  conclude 
that  the  prisoner  may  be  innocent  of  the  offence.  In  such  a 
case,  as  I  understand  the  law,  he  is  entitled  to  be  bailed," 

The  effect  of  the  disagreement  of  the  jury  upon  the  ques- 
tion of  letting  to  bail  depends  materially  upon  the  grounds 
of  disagreement.  If  the  disagreement  be  caused  by  the  cap- 
tiousness  or  obstinacy  of  one  juror  it  will  be  of  no  value 
whatever' in  determining  the  question  of  bail;  and  if  the 
disagreement  be  upon   a   matter   of   law    the    difference    of 

1  Beall  r.  State,  30  Miss.  715  (1861);  3  See  State  v.  Summons,  19  Ohio, 
People  V.  Cole,  6  Park.  Cr.  Cas.  (N.  Y.)     139  (1850). 

695    (1868);    State   v.    Summons,    19  4.39  1^88,715(1861). 

Ohio   139  (1850)  ;   Webb  v.   State,  4  ^  People  v.  Perry,  8  Abb.  (N.  Y.) 

Tex.  App.  167  (1879).  Pr.  N.  S.  27   (1870)  ;  People  v.  Good- 

2  State  V.  Summons,  19  Ohio,  139  win,  1  Wheel.  Cr.  Cas.  (N.  Y.)  434, 
(1850);  Webb  v.  State,  4  Tex.  App.  436  (1820). 

167  (1879).  6  5  City  Hall  Rec.  11  (1820). 


328  HOMICIDE.  [chap.  XII. 

opinion  among  the  jurors  will  be  entitled  to  no  consideration 
by  the  court  trjdng  the  question  of  bail ;  but  if  the  disagree- 
ment accrue  out  of  an  intelligent  and  conscientious  differ- 
ence of  opinion  in  relation  to  matters  of  fact  proper  to  be 
considered  by  the  jury,  then  such  disagreement  may  properly 
be  considered  as  creating  an  interference  in  favor  of  the 
prisoner.  There  are  cases,  however,  in  which  bail  has  been 
allowed,  for  special  reasons  unconnected  with  the  question  of 
probable  guilt  or  innocence,  both  before  and  after  convic- 
tion.^ 

Sec.  291.  Bail  after  conviction.  —  As  a  general  rule,  in 
a  capital  case  the  prisoner  is  not  bailable,  after  conviction,  on 
motion  for  a  new  trial.^  After  a  conviction  for  a  lower 
degree  of  homicide,  the  right  to  bail  is  governed  by  the  same 
rules  as  obtain  in  the  case  of  other  felonies,  is  a  matter  of 
discretion  merely ;  and  in  general  should  not  be  allowed, 
except  where  circumstances  of  an  extraordinary  character 
have  intervened.'^ 

Under  the  Iowa  Code  ^  providing  that  where  an  appeal  ^s 
taken  from  a  judgment  of  imprisonment  in  the  penitentiary, 
and  the  defendant  is  unable  to  give  bail,  the  district  court, 
may,  in  its  discretion,  order  the  sheriff  to  retain  the  defendant 
in  custody  to  await  the  judgment.  The  district  court  has 
discretion  to  order  a  defendant  convicted  of  murder  in  the 
second  degree  retained  in  custody,  since  that  degree,  being 

^  Ex  parte  Dyson,  '  25    Miss.    359  bee,  60  Barb.    (N.    Y.)    480    (ISH)  ; 

(1852)  ;    Commonwealth  v.  Archer,  6  People  v.   Lohman,  2   Barb.   (N.  Y.) 

Gratt.    (Va.)    705    (1849)  ;    Common-  450  (1848)  ;  People  !-.  Bowe,  58  How. 

wealth    V.    Semmes,    11    Leigh    (Va.)  (N.    Y.)    Pr.    393    (1880)  ;    State    v. 

665  (1841)  ;  Hex  v.  Bishop,  1  Strange  Ward,   2    Hawks.     (N.    C)    L.    443 

9  (1717).  (1823)  ;  State  v.  Rutherford,  1  Hawks. 

2  State  V.  Connor,  2  Bay.  (S.  C.)  (N.  C.)  L.  457  (1821)  ;  State  r.  Daniel, 
34  (1796).  8  Ired.  (N.  C.)  L.  21   (1847)  ;  State  v. 

3  See^'.rprtrte  Smallman,  54Cal.35  Satterwhite,  20  S.  C.  536  (1883); 
(1879)  ;  Ex  parte  Marks,  49  Cal.  681  State  v.  Connor,  2  Bay.  (S.  C.)  34 
(1875)  ;  People  v.  Perdue,  48  Cal.  (1796)  ;  State  v.  Frink,  1  Bay.  (S.  C.) 
552  (1874);  Ex  parte  Hoge,  48  Cal.  168  (1791);  Ex  parte  Ezell,  40  Tex. 
3  (1874)  ;  Ex  parte  Voll,  41  Cal.  29  451  (1874)  ;  s.c.  19  Am.  Rep.  32.  See 
(1871)  ;  Miller  v.  State,  15  Fla.  575  also  Ex  parte  Longworth,  7  La.  An. 
(1876);  Corbett  v.  State,  24  Ga.  391  247  (1852);  Rex  v.  Saltash,  2  Show. 
(1857)  ;  Lumm  v.  State,  3  Ind.  293  93  (1681)  ;  Rex  v.  Reader,  1  Str.  531 
(1852)  ;  Ex  parte  Dyson,  25  Miss.  356  (1736).  Compare  Governor  v.  Fay,  8 
(1852);  Davis  v.  State,  7  Miss.  (6  La.  An.  490  (185i>) ;  Warnock  »;.  State, 
How.)  399  (1842)  ;  People  v.  Folras-  6  Tex.  App.  450  (1879). 


SEC.  292.] 


BAIL   IN    HO^UCIDE   CASES, 


329 


included  within  the  term  "  murder,"  as  defined  by  the  Iowa 
Code,^  is  within  the  prohibition  of  chapter  103,  of  the  act 
of  the  Seventeenth  General  Assembly,  providing  that  no 
defendant  convicted  of  murder  shall  be  admitted  to  bail. 
This  act  repeals  section  4107  of  the  Iowa  Code  and  all 
other  inconsistent  sections,  permitting  bail  in  certain  cases.^ 

Sec.  292.    Granting-  and    refusing    l>ail  —  Procedure.  — 

The  general  rules  of  procedure  in  the  granting  and  refusing 
of  bail  in  cases  of  homicide  are  the  same  as  in  other  offences. 
The  jurisdiction  to  admit  to  bail  is  generally  exercised  by 
means  of  writs  of  habeas  corpus  and  certiorari^  or  by  both 
conjointly ;  the  first  being  for  the  prisoner  and  the  latter  for 
the  record.^  Every  court,  judge,  or  other  officer  who  has 
power  to  issue  the  writ  of  habeas  corpus  and  to  hear  and  deter- 
mine the  same  has  power  to  admit  the  prisoner  to  bail,  and 
most  of  the  statutes  so  provide.* 


1  la.  Code,  §  4529. 

2  Baldwin  v.  Westenhaver,  75  Iowa 
547  (1888)  ;  s.c.  39  N.  W,  Rep.  882. 

3  20  Cent.  L.  J.  264. 

*  See  Callahan  v.  State,  60  Ala.  65 
(1877)  ;  ex  parte  Clianey,  8  Ala.  424 
(1845)  ;  Lynch  r.  People,  38  111.  494 
(1865)  ;  Matter  of  Alexander,  59  Mo. 
598  (1875) ;  People  v.  Jefferds,  5  Park. 
Cr.  Cas.  (N.Y.)  518  (1861)  ;  People  v. 
Goodwin,  1  Whetl.  Cr.  Cas.  (N.Y.) 
434,  436  (1820). 

A  limitation  upon  the  rule  that 
every  court  which  has  power  to  issue 
the  writ  of  habeas  corpus,  and  to  hear 
and  determine  the  same,  has  power  to 
admit  the  prisoner  to  bail,  is  found  in 
a  line  of  decisions  which  hold  that 
under  the  seventh  section  of  the  Eng- 
lish Habeas  Corpus  Act  the  prayer 
for  bail  must  be  entered  in  a  court 
which  has  jurisdiction  to  try.  Rex  v. 
Mackintosh,  1  Str.  308  (173.3);  Rex 
V.  Bishop  of  Rochester,  Fort.  102 
(1722)  ;  Rex  v.  Yate,  Fort.  101  (1692)  ; 
s.c.  1  Show.  190 ;  Rex  v.  Leason,  1  Ld. 
Raym.  61  (1696)  ;  s.c.  1  Str.  308  n. ; 
Rex  V.  Piatt,  1  Leach  Cr.  L.  157 
(1877).  Compare  Rex  v.  Orrery,  8 
Mod.  96  (1723). 

In  Alabama  it  may  be  made  be- 


fore the  circuit  judge  or  chancellor 
at  any  time,  and  the  affidavit  of  the 
prosecutor  excusing  the  delay  may  be 
made  at  the  same  time.  Ex  parte 
Chaney,  8  Ala.  424  (1845).  See  Ex 
parte  Campbell,  20  Ala.  89,  93  (1852)  ; 
Ex  parte  Croom,  19  Ala.  561  (1851). 

The  Supreme  Judicial  Court 
of  Massachusetts  will  not  entertain 
such  an  application,  in  a  case  where 
the  prisoner  is  held  under  a  criminal 
accusation  and  may  be  admitted  to 
bail,  if  it  be  a  bailable  case,  by  an 
inferior  court.  Belgard  v.  Morse,  68 
Mass.  (2  Gray)  406  (1854). 

In  New^  York  it  has  been  lield 
that  an  application  for  a  discharge 
under  such  a  statute  may  be  made  in 
the  Supreme  Court,  which  has  general 
power  to  issue  the  writ  of  habeas  cor- 
pus, and  to  hear  and  determine  the 
same.  People  v.  Jefferds,  5  Park.  Cr. 
Cas.  (X.  Y.)  518  (1861). 

By  the  Pennsylvania  statute  the 
power  to  discharge,  in  such  cases,  is 
confided  to  the  judges  of  the  courts 
in  which  the  indictment  is  pending; 
and,  while  the  Supreme  Court  is  bound 
to  allow  the  writ  of  halieas  corpus,  yet 
they  will  not  look  further  than  to  see 
that  the  commitment  is  unexception- 


330  HOMICIDE.  [chap.  XII. 

In  Rex  V.  Fitzgerald  ^  the  court  refused  to  discharge  a 
prisoner  on  a  habeas  corpus,  charged  with  having  murdered 
his  wife  in  Ireland,  communication  having  been  made  by  the 
provincial  to  the  home  government  on  the  subject  and  no 
answer  received,  and  the  prisoner  having  been  in  custody 
less  than  a  year ;  and  it  is  said  that  bail  in  such  a  case  will 
not  be  allowed  until  a  year  from  the  time  of  the  first  imprison- 
ment, although  no  proceedings  have  been  taken  by  the  crown. 

Sec.  293.  Same  —  Review. — Admission  to  bail  is  not  an 
adjudication  that  the  defendant  is  not  guilty  of  a  capital  of- 
fence,2  but  the  refusal  of  a  court  to  hear  evidence  on  an  appli- 
cation for  bail  after  indictment  for  a  capital  offence  is  such  a 
final  judgment  as  is  reviewable  on  appeal ;  -^  and  the  appellate 
court  will  review  and  weigh  the  evidence,^  and  decide  ac- 
cordingly, without  regard  to  the  decisions  of  the  court  below.^ 

able    in    tlie    frame    of    it.     Ex  parte  been  changed.     Ex  parte    Walker,  3 

Walton,  2  Wliart.  (Pa.)  601  (1837).  Tex.  App.  668,  672  (1878). 

In  other  states  the  rule  obtains  i  Up.  Can.  (O.  S.)  300. 

that  the  application  must  be  made,  in  -  Moore    v.    State,    36    Miss.    137 

the  first  instance,  to  the  court  which  (1858). 

has  jurisdiction  to  try  the  offence  for  ^  j/j-   parte  Kendall,   100   Ind.    599 

which  the  prisoner  stands  committed.  (1884);  Ex  parte  Heffren,  27  Ind.  98 

£'x/)arteFennessy,  54  Cal.  101(1880);  (1806);    Lumm   v.   State,  3  Ind,  293 

Matter    of    Spradlend,    38    Mo.    547  (1852). 

(1866).     Where  the  venue  has  been  <  Ex     parte     Heffren,   27    Ind.   98 

clianged,  the  application  ought  to  be  (1866). 

made   to   the   court  to  which  it  has  ''  Ex  parte    Sutherlin,  56  Ind.  595 

(1877).  • 


CHAPTER   XIIL 

CHANGE   OF    VENUE. 

Sec.  294.  Application  for  change  of  venue. 

Sec.  295.  Reasons  for  change  —  Local  prejudice. 

Sec.  296.  Same —  Georgia  doctrine. 

Sec.  297.  AfBdavits  and  application  —  Weight  and  sufficiency. 

Sec.  298.  Same  —  Counter-affi(h\vits. 

Sec.  299.  Filing  tlie  indictment  and  transcript  on  change  of  venue. 

Sec.  294.  Application  for  chang-e  of  venue.  —  As  a  gen- 
eral rule,  an  application  for  a  change  of  the  venue  on  the  trial 
of  an  indictment  for  homicide  is,  like  such  appUcations  in 
other  cases,  addressed  to  the  sound  discretion'  of  the  court, ^ 
which  will  not  be  interfered  with  except  when  clearly  abused ; 
but  sometimes  by  statutory  provision  the  court  is  deprived  of 
its  discretion,  and  the  place  of  trial  must  be  changed  as  a 
matter  of  right,  upon  the  petitioner's  compliance  with  the 
prescribed  conditions.  Thus  it  has  been  held  that,  with  the 
exemption  of  the  case  of  offences  punishable  with  death  from 
the  provisions  of  the  Illinois  act  of  18C1,  requiring  that  the 
petitioner  for  a  change  of  venue  shall  state  the  grounds  of 
his  belief,  &c.,  leaves  the  court  no  discretion  to  refuse  the 
application  in  a  capital  case.^ 

Sec.  295.  Reasons  for  chang-e  —  Local  prejudice.  —  A 
verdict  of  guilty  of  murder  in  the  first  degree  will  be  set 
aside  where  it  is  apparent  that  from  the  prejudice  existing  a 
fair  trial  was  not  had,  and  where  it  is  apparent  tliat  the  court, 
of  its  own  motion,  should  have  changed  the  venue.^ 

Sec.  296.  Same  —  Georgia  doctrine.  —  Under  the  Georgia 
Code  *  providing  that  change  of  venue  shall  be  granted  only 

1  Blackman  v.  State,  80  Ga.  785  (1872);  Perteet  r.  People,  65  III.  230 
(1888);  s.c.  7  S.  E.  Rep.  626;  State     (1872). 

V.  Perigo,  70  Iowa,  657   (1886)  ;    s.c.  3  Steagald   v.  State,  22   Tex.  App. 

8  Cr.  L.  Mag.  156;  28  N.  W.  Rep.  457.     464   (1886)  ;  s.c.  9  Cr.  L.  Mag.  515; 

2  Rafferty   v.   People,   60   111.    118     3  S.  W.  Rep.  771. 

*  Ga.  Code,  §  4687. 

331 


332  HOMICIDE.  [chap.  XIII. 

when  the  judge  shall  be  satisfied,  by  an  examination  of  the 
persons  liable  to  serve,  that  an  impartial  jury  cannot  be  ob- 
tained, does  not,  in  so  far  as  it  regulates  the  manner  in  which 
the  judge  shall  satisfy  himself,  violate  the  provisions  of  the 
Georgia  constitution,  restricting  change  of  venue  to  cases  in 
which  the  judge  is  satisfied  that  an  impartial  jury  can  be  ob- 
tained in  the  county,  but  providing  that  the  power  is  to  be  ex- 
ercised in  such  manner  as  has  been  or  shall  be  provided  by  law.^ 

Sec.  297.  Affidavits  and  application  —  Weight  and  suffi- 
ciency. —  The  application  for  change  of  venue  must  usually 
be  accompanied  by  affidavits  of  reputable  persons  to  the  effect 
that  they  believe  that  the  defendant  will  not  be  able  to  obtain  a 
fair  and  impartial  trial  in  the  county,  because  of  the  prejudice 
therein  existing  against  him.^  Where  application  is  made  for 
a  change  of  venue  in  a  murder  case  on  account  of  the  excite- 
ment and  prejudice  in  the  county,  the  full  and  decisive  affi- 
davits of  three  disinterested  witnesses  make  out  a  strong- 
prima  facie  case,  only  to  be  overcome  by  very  strong  nega- 
tive testimony.^ 

On  an  indictment  for  murder,  when  it  appears  from  the  affi- 
davits in  support  of  the  defendant's  motion  for  a  change  of 
venue  that  the  deceased  was  popular,  well  respected,  and 
widely  known;  that  the  accused  is  a  poor  negro,  without 
friends  or  influence  ;  that  the  killing  was  committed  under 
circumstances  calculated  to  arouse  public  indignation,  and 
that  great  excitement  followed ;  that  the  danger  of  lynching 
was  apparently  so  great  that  it  was  deemed  necessary  to  order 
out  the  militia  to  protect  the  accused  before  and  during  his  pre- 
liminary examination,  and  to  remove  him  to  another  county 
immediately  thereafter  ;  and  it  is  stated  that  some  of  the  jurors 
regularly  summoned  had  threatened  to  "  put  an  end  to  shoot- 
ing, and  make  short  work  of  the  murderer,"  —  the  trial  court 
should  grant  a  motion  when  the  trial  takes  place  only  two  and 
one-half  months  after  these  occurrences,  although  the  state 
files  counter-affidavits  of  many  citizens  that,  in  their  opinion, 
the  defendant  can  have  as  fair  and  impartial  a  trial  in  the 
county  in  which  the  indictment  is  laid  as  in  any  other  county 

1  Blackman    v.    State,  80  Ga.  785  "  See  Seams  v.  State,  84  Ala.  410 

(1888) ;  s.c.  7  S.  E.  Rep.  626.  (1887)  ;  s.c.  9  S.  AV.  Kep.  5fi:l 

3  State  V.  Nasli,  7  Iowa,  347  (1858). 


SEC.  298.]  CHANGE   OF    VENUE.  833 

in  the  state,  but  not  denying  the  allegations  of   the    other 
affidavits.^ 

Sec.  298.    Same  —  Couuter-affidavit.s.  —  On  an  application 
for  a  change  of  venue  in  the  trial  of  an  indictment  in  a  homi- 
cide case,  the  prosecution  may  file  counter-affidavits  both  for 
the  purpose  of  impeaching  the  credibility  of  affidavits  filed 
for  the  petitioner,^  and  also  for  adducing  contrary  proof  to 
the  effect  that  no  prejudice  exists.^     In  the  case  of  Meuly  v. 
State  *  the  appellant  moved  for  a  change  of  venue  in  the  case, 
and  based  his  motion  upon  the  first  ground  that  there  existed 
against  him  so  great  a  prejudice  in  the  county  that  he  could 
not  obtain  a  fair  and  impartial  trial.     His  application  was 
controverted  by  the  district  attorney,  under  the  provisions  of 
the  Texas  statute,'^  and  many  witnesses  were  permitted  to  be 
examined  on  both  sides  as  to  the  existence  or  non-existence 
of  prejudice   in   the   county.     It   was   urgently  insisted  that 
such  testimony  was  inadmissible  and  contravened  the  obvious 
purpose  and  intent  of  the  statute,  which,  it  was  contended, 
limits  and  restricts  the  matters  to  be  investigated  solely  to 
the  credibility  and  means  of  knowledge  of  the  defendant's 
compurgators  in  the  application.     In  other  words,  that  if  the 
credibility  and  means  of  knowledge  of  the  compurgators  is 
alone  authorized  to  be  attacked,  that  this  cannot  be  done  by 
proof  generally  of  the  non-existence  of  prejudice,  and  that 
in  such  a  contest  it  is  error  to  go  into  a  general  investigation 
as  to  the  existence  or  non-existence  of  prejudice.     The  court 
say:  "Now  what  was  the  sole  issue  presented  by  the  defend 
ant's  application  and  the  supporting  affidavits   of   the  com- 
purgators?    It  was    the    existence    or  the    non-existence    of 
prejudice.     Their  means  of  knowledge  upon  this  matter  was 
attacked.     To  show  that  such  prejudice  did  not  exist  mani- 
festly tends  most  strongly  to  prove  that  they  did  not  possess 
correct  means  of  ascertaining  the  truth  of  the  matter.    Under 
this  issue,  as  to  tlie  '  means  of  knowledge '  of  the  compurga- 

1  Scams    V.     State,    84    Ala.    410  State,  26  Tex.  App    274  (1888)  ;  s.c. 
(1887)  ;  s.c.  4  So.  Rep.  521.  9  S.  W.  Rep.  563. 

2  See  Meuly  v.  State,  26  Tex.  App.  *  26  Tex.  App.  274  (1888)  ;  s.c.  9 
274  (1888)  ;  s.c.  9  S.  W.  Rep.  563.  S.  W.  Rep.  563. 

3  Seams     v.    State,    84    Ala.    410  ^^  Tex.  Code  Crim.  Proc,  art.  583. 
(1887)  ;  s.c.  4  So.  Rep.  -321 ;  Meuly  v. 


33-1  HOMICIDE.  [chap.  XIII. 

tors,  it  has  been  more  than  once  decided  that  the  defendant 
^youkl  have  the  right  to  prove  the  existence  of  tlie  prejudice 
by  any  witness  besides  the  affidavit  of  his  compurgators ;  and, 
on  the  other  hand,  the  state  would  have  the  right  to  prove 
tliat  no  such  prejudice  did,  in  fact,  exist.  The  supporting 
affiants  could  be  thoroughly  tested  as  to  their  means  of  knowl- 
edge by  either  party."  ^ 

Sec.  299.  Filing  the  indictment  and  transcript  on  charge 

of  venue.  —  It  is  a  general  rule  that  the  original  indictment 
must  be  filed  in  the  court  to  which  the  trial  of  a  prosecution 
for  homicide  is  transferred ;  ^  but  in  some  states  the  trial  may 
be  had  on  a  transcript  furnished  by  the  clerk  of  the  court  of 
original  jurisdiction,  and  duly  certified  by  him  to  contain  a 
copy  of  the  indictment,  with  all  the  indorsements  thereon, 
and  the  entries  and  orders  made  in  relation  to  the  cause,  in- 
cluding the  order  for  the  removal  of  the  trial,^  and  attested 
with  the  seal  of  such  court.^ 

In  Beauchamp  v.  State  ^  the  record  showed  that  the  de- 
fendant was  indicted  in  the  Vigo  circuit  court  for  the  murder 
of  G.  M. ;  that  he  pleaded  there  not  guilty ;  that  he  procured 
a  change  of  venue  for  his  trial  on  that  indictment  to  the 
Parke  circuit  court ;  that  the  clerk  of  the  former  court  handed 
over  the  papers,  and  among  them  the  indictment  (which  was 
spread  on  the  record),  to  the  clerk  of  the  latter  court,  in 
which  they  were  filed ;  that  the  defendant  was  placed  on  his 
trial  in  the  Parke  circuit  court,  for  the  murder  of  G.  M.,  on 
the  plea  of  not  guilty,  theretofore  entered  in  that  behalf ;  that 
he  made  no  ol)jection  to  the  indictment  on  wliich  he  was  tried ; 
and  that  the  indictment  which  was  recorded  in  the  last-named 


1  Citing  Kenning  v.  State,  24  Tex.  ^  Brister  v.  State,  20  Ala.  107 
App.  315(1887);    s.c.  6  S.  W.   Kep.  (1855). 

137  ;    Scott   V.    State,    23    Tex.    App.  *  In  a  case  where  a  prisoner  charged 

521   (1887);    s.c.  5    S.  W.  Rep.   142;  with  a  capital  offence,  the  venue  hav- 

Smith     V.    State,    21    Tex.    App.    277  ing  been  changed,  went  to  trial  with- 

(1887)  ;    Pierson     v.    State,    21    Tex.  out  objecting  tliat  the  record   trans- 

App.    14    (1887) ;    Davis  v.  State,  19  niitted  was  not  attested  by  the  seal  of 

Tex.  App.  201  (1886).  the  court,  this  was  a  waiver  of  the 

2  See  Sawyer  ;■.  State,  10  Ind.  08  defect,  and  the  objection  could  not 
(1801)  ;  Beauchamp  v.  State,  0  Blackf.  afterwards  be  made.  Major  v.  State, 
(Ind.)  209  (1842)  ;  Shoemaker  v.  State,  2  Sneed  (Tenn.)  11  (1854). 

12  Ohio,  43  (1843).  5  q  Blackf.  (Ind.)  300  (1842). 


SEC.  299.]  CHANGE   OF   VENUE.  335 

court,  and  on  which  the  defendant  was  tried,  was  the  one  which 
was  transferred  among  the  papers  in  the  cause.  The  court  held 
that  these  facts  showed  that  the  indictment  found  against  the 
defendant  in  the  Vigo  circuit  was  the  one  on  which  he  was 
tried. 


CHAPTER   XIV. 

COUNSEL. 

Sec.  300.  Counsel  for  prosecution. 

Sec.  301.  Counsel  for  defence  —  Common  law  doctri 

Sec.  302.  Same  —  American  doctrine. 

Sec.  303.  Same  —  Canadian  doctrine. 

Skc.  304.  Same —  Appointment  of  counsel. 

Sec.  305.  Argument  of  counsel  prosecuting. 

Sec.  306.  Same  —  Misconduct  in  —  Improper  remarks. 

Sec.  307.  Same  —  Abusive  language  —  Exciting  prejudice. 

Sec.  308.  Same  —  Misstatement  of  facts  —  Assumptions. 

Sec.  309.  Same  —  Commenting  on  failure  to  testify,  &c. 

Sec.  310.  Same  —  Discretion  of  court  in  granting  new  trial. 

Sec.  311.  Argument  of  counsel  defending. 

Sec.  312.  Same  —  Limiting  time  of  argument. 

Sec.  300.  Coiin.sel  for  prosecution.  —  While  it  is  possible 
for  a  person  who  has  a  cause  in  court  to  appear  and  prosecute 
it  in  person,  such  is  not  the  case  with  a  state,  a  county,  or 
any  other  corporate  body.  In  all  prosecutions  for  homicide, 
as  well  as  for  other  crimes,  the  regularly  authorized  prosecut- 
ing officer  is  the  only  attorney  having  the  right  to  prosecute 
an  indictment  for  homicide  without  special  consent  of  the 
court ;  but  it  is  not  improper  for  the  court  to  permit  him  to 
be  assisted  by  counsel  ^  employed  by  relatives  or  friends  of 
the  deceased,  or  by  other  persons  interested  in  punishing  the 
offence  with  which  the  defendant  is  charged.^ 

The  fact  that  there  is  a  prosecuting  officer  for  each  district 
or  other  division  of  the  state  cannot  prevent  the  general 
prosecuting  officer  of  the  state  from  assisting  the  local  prose- 
cutor at  a  trial  for  homicide,  at  his  option.  Thus  the  attor- 
ney-general may  properly  assist  the  circuit  attorney  at  a  trial 
for  murder,  whether  ordered  by  the  governor  to  do  so  or  not, 
and  the  prisoner  cannot  take  just  exception. -"^ 

1  Rounds    V.    State,    57     Wis.    45  2  People    v.    Tidwell    (Utah    Ter.) 

(1883)  ;  s.c.  14  N.  W.  Rep.  865.  12  Pac.  Rep.  (il  (1886). 

3  State  V.  Hays,  23  Mo.  287  (1856). 

336 


SEC.  301.]  COUNSEL.  33T 

Sec.    301.    Counsel     for    defence.  —  Common    law    doc- 
trine.—  At  common  law,  in  all  cases,  whether  of  treason, 
felony,  or  misdemeanor,  and  at  all  times,  the  prisoner  has  had 
and  still  has  the  right  to  address  the  jur}^  in  person  in  his  own 
defence ;  but  be  he  a  peer  or  commoner  he  was  not  entitled  to 
defend  by  counsel  upon  the  general  issue  "  not  guilty  "  on  an 
indictment  for  treason  or  felony ;  ^  yet  upon  collateral  facts, 
as  a  plea  of  sanctuary  or  a  pardon,  or  upon  the  assignment 
of  error  to  reverse  a  sentence  of  outlawry,  prisoners    under 
capital  charges,  whether  of  treason  or  of  felony,  were  entitled 
to  the  assistance  of  counsel.^     However,  the  prisoner  is  not 
entitled  to  address  the  jury  both  by  himself  and  by  counsel. 
Lord  Ellenborough  says  in  the  case  of  Ilex  v.  White  :  ^     "I 
am  afraid  of  the  confusion  and  perplexity  that  would  arise 
if  a  cause  were  to  be  conducted   at   the  same  time   both  by 
counsel  and  the  party  himself.     I  am  extremely  anxious  that 
a  person  accused  should  have  every  assistance  in  making  his 
defence,  but  I  must  likewise  look  to  the  decent  and  orderly 
administration  of  justice.     I  therefore  cannot  allow  counsel 
to  examine  witness  for  the  defendant  if  he  is  likewise  to  put 
questions  to  them  himself  and  afterwards  to  address  the  jury. 
"  If,  in  the  course  of  the  trial,  any  point  of  law  arises  wiiich 
he  declares  himself  incompetent  to    discuss,  I  will  be   very 
ready  to  hear  it  argued  by  his  counsel,  although  he  conducts 
the  defence  himself.     I  will  do  in  this    respect  as  was  for- 
merly done  in  capital  cases  when  the  assistance  of  counsel 
was  not  permitted  to  prisoners  upon  matters  of  fact.    I  think  I 
cannot  consistently  with  my  duty  go  further  ;    and    surely 
there  is  no  hardship  in  the  rule  I  lay  down.     If  the  defend- 
ant has  counsel  to  conduct  his  cause,  he  may  suggest  any 
question  to  them  which  he  considers  fit  to  be  put,  or  if  he 
takes  the  conduct  of  it  upon  himself,  he  may  have  the  benefit 
of  their  private  suggestions    upon    matters  of    fact ;  and    as 
soon  as  any  point  of  law  arises  they  shall  be  readily  heard 
upon  it." 

1  1  Arclibold's  Crim.  Prac.  and  PI.  "  Foster's  Crown  Law,  pp.  42,  46, 

(Pomeroy's    ed.)  551 ;    1  Chitty's  Cr.     56,  232  ;  Ratcliff' s  Case,  4  How.  State 
Law,  407;    Foster   Crown    Law,  231;     Trials,  47  (1640). 
Hale  P.  C.  236,  Hawk.  P.  C.  b.  2,  c.  ^  3  Campb.  N.  P.  98  (1811). 

39,  §  1 ;  Weeks  on  Attorneys  at  Law, 
§  184. 

22 


338 


HOMICIDE. 


[chap.  XIV. 


The  undoubted,  weight  of  authority  is  in  favor  of  the  rule 
that  a  prisoner  is  in  the  hands  of  his  counsel  for  every  pur- 
pose, if  he  sees  fit  to  employ  counsel ;  but  so  tender  is  the 
law  about  infringements  of  ancient  rights  that  on  a  murder 
trial  of  a  foreigner  who  had  obstinately  remained  mute  from 
malice  for  more  than  a  year,  the  court  refused  to  allow  coun- 
sel to  appear  for  the  prisoner  without  his  express  consent.^ 

Sec.  802.  Same  —  American  doctrine. —  In  this  country 
it  is  a  universal  principle  of  constitutional  and  statutory  law 
that  a  prisoner  charged  with  murder,  or  any  other  crime,  is 
entitled  to  be  defended  by  counsel.^ 

Sec.  303.  Same  —  Canadian  doctrine.  —  In  Canada  per- 
sons on  trial  for  felony  may  make  full  defence  by  two  coun- 
sel and  no  more,  and  before  a  jury  wholly  composed  of  persons 
skilled  in  the  language  of  the  defence.''^ 

Sec.  304.    Same  —  Appointment     of     counsel.  —  In    all 

prosecutions  for  homicide,  as  well  as  for  other  offences,  the 


1  Reg.  ?;.  Yscuado,  6  Cox  C.  C.  38G 
(1854).  Enforced  in  Reg.  r.  Manzano, 
2  Fost.  &  F.  64  (1860)  ;  s.c.  6  Jur. 
N.  S.  400 ;  Reg.  v.  Rider,  8  Car.  &  P. 
539  (18;]8);  s.c.  34  Eng.  C.  L.  880; 
Reg.  V.  Walkling,  8  Car.  &  P.  243 
(1838);  s.c.  34  Eng.  C.  L.  713;  Reg. 
V.  Bouclier,  8  Car.  &  P.  141  (1837)  ; 
s.c.  34  Eng.  C.  L.  055  ;  Reg.  v.  Taylor, 
1  Fost.  &  F.  535  (1859)  ;  Reg.  v.  Teste, 
4  Jur.  N.  S.  244  (1858)  ;  Reg.  v.  Bur- 
rows, 2  M.  &  Rob.  124  (1838).  Rule 
relaxed  in  Reg.  v.  Malings,  8  Car.  & 
P.  242  (1838)  ;  s.c.  34  Eng.  C.  L.  712  ; 
Reg.  V.  vStepliens,  11  Cox  C.  C.  669 
(1871)  ;  Reg.  v.  AVilliams,  1  Cox  C.  C. 
363  (1846)  ;  Reg.  v.  Dyer,  1  Cox  C.  C. 
113  (1844). 

2  Cooley's  Const.  Lim.  334.  In  all 
the  states,  except  Virginia,  there  are 
constitutional  provisions  securing  this 
privilege;  and  in  that  state  it  is  secured 
by  a  statute  of  1780.  The  statutory 
provisions  in  the  various  states  are  as 
follows  :  In  Mississippi,  South  Caro- 
lina, and  Texas,  the  language  of  the 
constitutional  clause  is  too  explicit  to 
admit  of  doubt ;  it  gives  the  right  "  to 
be    heard   by  himself   or  counsel,  or 


both,  as  he  may  elect."  In  Arkansas, 
Colorado,  Connecticut,  Delaware,  Illi- 
nois, Indiana,  Kentucky,  ^Missouri, 
New  Hampshire,  Ohio,  Pennsylvania, 
Tennessee,  Vermont,  and  Wisconsin, 
the  language  is  "by  himself  and  his 
counsel."  In  Kansas,  Louisiana,  and 
Nebraska,  it  is  "  in  person  or  by  coun- 
sel." In  Alabama  and  Maine,  it  is 
"by  himself  and  his  counsel,  or  either, 
at  his  election."  In  Massachutts  he 
"shall  be  fully  heard  by  himself  or 
counsel,  at  his  election."  In  Cali- 
fornia, Florida,  Nevada,  and  New 
York,  he  is  "  to  appear  and  defend  in 
person  and  with  counsel,  as  in  civil 
actions."  In  Georgia  he  "sliall  have 
the  privilege  and  benefit  of  counsel." 
In  Iowa,  Michigan,  Minnesota,  New 
Jersey,  North  Carolina,  Rhode  Island, 
and  West  Virginia,  "he  shall  have 
the  assistance  of  counsel  in  his  de- 
fence." In  Maryland  it  is  declared 
that  "he  ought  to  be  allowed  counsid." 
See  21  Am.  L.  Reg.  635,  636;  Wingo 
r.  State,  (Miss.)  ;  6  Cr.  L.  Mag.  824 
(1885). 

3  Reg.    r.   Daoust,    8    L.  C.  Jur.  85 
(1800). 


SEC.  304.] 


COUNSEL. 


defendant  is  entitled  to  the  services  of  counsel ;  and  if  lie 
has  not  the  means  with  which  to  employ  counsel,  an  attorne} 
must  be  assigned  by  the  court  to  defend  him;^  no  attorne} 
is  at  liberty  to  decline  such  an  appointment,^  even  though  he 
knows  the  prisoner  to  be  guilty ;  because,  Avhether  guilty 
or  innocent,  the  prisoner  has  the  right  of  defence,  and  it  is 
the  duty  of  the  counsel  assigned  to  see  that  the  prisoner  has 
a  fair  trial  according  to  the  law  of  the  land  "  and  to  use  all 
fair  arguments  arising  on  the  evidence  "  to  secure  his  acquit- 
tal.^    Judge  Cooley  says  *  that  "  having  once  engaged  in  a 


1  See  People  v.  Moice,  15  Cal.  329 
(1800)  ;  1  Bish.  Cr.  L.  (3d  ed.)  303. 

The  first  instance  on  record  of  the 
assigning  of  counsel  to  an  indigent 
defendant  prisoner  is  in  tlie  case  of 
the  trial  of  Rookwood  et  al.,  in  wiiich 
Sir  Bartliolomew  Showers,  assigned 
as  counsel,  addressing  the  court, 
said,  "My  Lord,  we  are  assigned  of 
counsel  in  pursuance  of  an  act  of 
Parliament,  and  we  hope  that  nothing 
which  we  shall  say  in  defence  of  our 
clients  shall  be  imputed  to  ourselves. 
.  .  .  We  come  not  here  to  countenance 
the  practices  for  which  the  prisoners 
stand  accused,  nor  the  principles  upon 
which  snch  practices  may  be  presumed 
to  be  founded;  for  we  know  of  none, 
cither  religious  or  civil,  that  can  war- 
rant or  excuse  them."  Lord  Holt 
administered  a  very  proper  rebuke  for 
these  very  improper  remarks.  13 
How.  State  Trials,  154  (1G9G).  In 
strong  contrast  with  this  abject  apol- 
ogy is  the  splendid  bearing  ofErskine 
on  the  trial  of  Paine.  He  said,  "  I 
will  forever  —  at  all  hazards  —  assert 
the  dignity,  independence,  and  integ- 
rity of  the  English  bar,  without  which 
impartial  justice,  the  most  valuable 
part  of  the  English  Constitution,  can 
have  no  existence.  From  the  moment 
that  any  advocate  can  be  permitted 
to  say  that  he  will  or  will  not  stand 
between  the  crown  and  the  subject 
arraigned  in  the  court  where  he  daily 
sits  to  practice,  from  that  moment, 
the  liberties  of  England  al-e  at  an 
end."  8  Campbell's  Lives  of  the 
Chancellors  (8th  ed.)  851;  Sherwood's 


Leg.  Eth.  94.  See  21  Am.  L.  Reg. 
G31. 

^  Vise  V.  Hamilton  County,  78  111. 
18  (1857)  ;  Wayne  County  v.  Waller, 
90  Pa.  St.  99  (1879)  ;  House  i'.  Whitis 
5  Baxt.  (Tenn.)  090  (1875). 

3  See  Sherwood's  Leg.  Eth.  108. 
See  also  the  criticisms  upon  the  con- 
duct of  Cliarles  Phillips  in  the  defence 
of  Courvoisier,  24  Littell's  Living  Age, 
179,  et  seq.;  25  Littell's  Living  Age, 
289-312.  In  this  case  Courvoisier,  a 
Swiss  valet,  had  barbarously  murdered 
his  master,  Lord  William  Russell, 
while  asleep.  Mr.  Phillips  and  j\Ir. 
Clarkson  were  retained  to  defend  him. 
Oh  the  second  day  of  the  trial  Cour- 
voisier acknowledged  to  his  counsel 
that  he  had  committed  the  murder, 
at  the  same  time  saying  that  he  wished 
them  to  defend  him  to  the  utmost. 
Upon  hearing  this  confession  Phillips 
at  once  formed  the  resolution  of  aban- 
doning the  case,  and  so  told  his  col- 
league, who  said:  "I  am  satisfied  that 
my  original  impression  was  erroneous, 
but  I  have  no  riglit  to  throw  up  my 
brief  and  turn  traitor  to  the  wretch  — 
wretch  though  he  is  —  who  lias  confided 
to  me " ;  and  suggested  that  they 
should  take  the  opinion  of  Baron 
Parke  who  sat,  during  the  trial,  beside 
the  Chief  Justice,  but  did  not  try  the 
cause.  Baron  Parke  requested  to 
know  distinctly  whether  the  prisoner 
insisted  on  Phillips  defending  him  and 
on  hearing  tliat  he  did  said  that  he 
"  was  bound  to  do  so,  and  to  use  all  fair 
arguments  arising  on  the  evidence." 

*  Cooley's  Const.  Lim. (5th  ed.)  :]35. 


340  HOMICIDE.  [chap.  XIV. 

cause,  the  counsel  is  not  afterwards  at  liberty  to  withdraw 
from  it  without  the  consent  of  his  client  and  of  the  court; 
and  even  though  he  may  be  impressed  with  a  belief  in  his 
client's  guilt,  it  will  nevertheless  be  his  duty  to  see  that  a 
conviction  is  not  secured  contrary  to  the  law.  The  worst 
criminal  is  entitled  to  be  judged  by  the  laws ;  and  if  his  con- 
viction is  secured  by  means  of  a  perversion  of  the  law,  the 
injury  to  the  cause  of  public  justice  will  be  more  serious 
and  lasting  in  its  results  than  his  being  allowed  to  escape 
altogether." 

A  person  accused  of  homicide  is  entitled  to  a  full,  fair, 
and  able  presentation  of  his  case  in  all  courts  wdiere  it  is  con- 
sidered ;  and  it  has  been  held  that  the  gross  ignorance,  incom- 
petence, and  imbecility  of  tlie  attorney  for  a  person  charged 
with  murder,  whereby  his  defence  is  not  fully  and  fairly  pre- 
sented, may  be  good  ground  upon  which  to  grant  a  new  trial 
after  a  conviction  for  that  offence.^ 

Sec.  305.     Argument    of     counsel     prosecuting.  —  The 

province  of  counsel  in  argument  is  to  state  to  the  jury  the 
case  and  the  facts  pertaining  thereto,  and  to  sum  up  before 
them  the  evidence ;  and  where  the  prosecuting  counsel  exceed 
this,  go  beyond  proof  relating  to  the  case,  and  the  hypothesis 
upon  which  the  prosecution  is  based,  in  order  to  create  a 
prejudice  in  the  minds  of  the  jury  against  the  defendant,  and 
the  court  makes  no  attempt  to  counteract  any  effect  which 
such  action  may  have,  the  defendant  does  not  receive  an 
impartial  trial,  which  is  guaranteed  to  him  by  constitutional 
provision. 

In  a  prosecution  for  liomicide  the  opening  statement  of  the 
case  by  the  counsel  for  the  prosecution  is  one  requiring  great 
latitude  ;  and  it  is  not  a  matter  which  can  he  assigned  as  error 
that  a  hypothesis  w^as  stated  to  the  jury  by  the  prosecuting 
attorney  which  the  evidence  did  not  afterwards  strictly  prove. 
Thus  an  opening  statement  by  the  state's  attorney,  in  a  trial 
for  murder,  that  the  defendant  had  a  difficulty  with  A  B,  in 
the  evening  preceding  the  homicide,  and  that  A  B  procured 
a  warrant  for  his  arrest,  and  that  the  defendant  then  obtained 
a  revolver  with  which  he  shot  the  sheriff  wlien  seeking  to 

1  See  State  v.  Jones,  12  Mo.  App.93  (1884). 


SEC.  306.] 


COUNSEL. 


341 


make  the  arrest,  has  been  held  to  have  been  properly  made 
as  tending  to  disprove  the  theory  of  self-defence,  even  though 
the  attorney  was  unable  to  find  evidence  to  support  all  his 
statements.^ 

The  argument  upon  the  evidence,  however,  should  always 
be  confined  strictly  to  the  proof  of  the  defendant's  guilt,  and 
tlie  circumstances  tending  thereto.  The  criterion  as  to  the 
reversal  for  erroneous  remarks  of  prosecuting  counsel  is 
always  the  question  whether  such  remarks  or  statements  prob- 
ably had  the  effect  of  working  to  the  prejudice  of  defendant 
with  the  jury .2  But  the  objection  must  be  made  at  the  time ; 
it  comes  too  late  after  verdict.^ 

Sec.  306.    Same  —  Misconduct  in  —  Improper  remarks. 

—  The  conduct  and  language  of  the  prosecuting  officer  in 
the  argument  to  the  jury  is  largely  within  the  discretion  and 
control  of  the  trial  court  in  a  homicide  case,  as  well  as  in 
other  cases.*     The  counsel,  must,  as  a  general  rule,  confine 


1  State  r.  Meshek,  61  Iowa,  316 
(1883). 

2  See  Cross  v.  State,  68  Ala.  476 
(1881);  People  i;.  Ah  Fook,  64  Cal. 
380  (1883)  ;  Petite  i-.  People,  8  Colo. 
518  (1885);  s.c.  9  Pac.  Rep.  622; 
Blackman  v.  State,  78  Ga.  592  (1887)  ; 
s.c.  10  Cr.  L.  Mag.  71;  3  S.  E.  Rep. 
418 ;  Earll  v.  People,  99  111.  123  (1881)  ; 
BuUiner  v.  People,  95  III.  394  (1880)  ; 
Epps  V.  State,  102  Ind.  539  (1885)  ; 
s.c.  5  Am.  Cr.  Rep.  517 ;  1  X.  E.  Rep. 
491 ;  Ferguson  v.  State,  49  Ind.  33 
(1874);  s.c.  1  Am.  Cr.  Rep.  582; 
Johnson  r.  State,  63  Miss.  313  (1885)  ; 

,  Cavanagh  v.  State,  .56  Miss.  299  (1879)  ; 
State  r.  Walker,  98  Mo.  95  (1888); 
s.c.  9  S.  W.  Rep.  647 ;  State  r.  Banks, 
10  Mo.  App.  Ill  (1882)  ;  Simmerman 
V.  State,  16  Neb.  615  (1884)  ;  s.c.  21 
N.  W.  Rep.  .387 ;  State  i-.  Mattliews, 
80  N.  C.  417  (1879);  State  r.  Smith, 
75  N.  C.  306  (1876)  ;  Commonwealth 
r.  Smith,  10  Phila.  (Pa.)  189  (1873)  ; 
Cartwrtght  v.  State,  16  Tex.  App.  473 
(1884)  ;  s.c.  49  Am.  Rep.  826 ;  Pur- 
year  V.  Commonwealth,  83  Va.  51 
(1887)  ;  s.c.  9  Cr.  L.  Mag.  788 ;  1  S.  E. 
Rep.  512;  Price  i'.  Commonwealth,  77 
Va.  393  (1883). 


3  See  Earll  r.  People,  99  111.  123 
(1881)  ;  BuUiner  v.  People,  95  111.  .394 
(1880)  ;  Gillooley  v.  State,  58  Ind.  183 
(1877)  ;  State  v.  Watson,  C3  Me.  128 
(1873)  ;  Commonwealth  v.  Worcester, 
141  Mass.  58  (1886)  ;  s.c.  6  X.  E.  Rep. 
700;  State  r.  Forsythe,  89  M<>.  667 
(1886)  ;  s.c.  1  S.  W\  Rep.  834 ;  Brad- 
shaw  V.  State,  19  Xeb.  644  (1886)  ; 
s.c.  28  X.  W.  Rep.  323;  McLain  v. 
State,  18  Xeb.  154  (1885)  ;  s.c.  24  X. 
W.  Rep.  720;  Puryear  v.  Common- 
wealth, 83  Va.  51  (1887)  ;  s.c.  9  Cr. 
L.  Mag.  788,  1  S.  E.  Rep.  512. 

*  Morgan  r.  Hugg,  5  Cal.  409 
(185-3)  ;  Duffin  v.  People,  107  111.  113 
(1883)  ;  Shular  r.  State,  105  Ind.  289 
(1885);  s.c.  4  X.  E.  Rep.  870;  Epps 
V.  State,  102  Ind.  539  (1885)  ;  s.c.  5 
Am.  Cr.  Rep.  517  ;  1  X.  E.  Rep.  492  ; 
Lafayette  r.  Weaver,  92  Ind.  477 
(188.3);  St.  Louis  &  S.  E.  R.  Co.  r. 
Mathias,  50  Ind.  65  (1875);  Bardeu 
r.  Briscoe,  36  Mich.  254  (1877)  ; 
Scripps  V.  Reilly,  35  Mich.  371  (1877) ; 
s.c.  24  Am.  Rep.  575 ;  State  r.  Hamil- 
ton, 55  Mo.  520  (1874)  ;  Loyd  r.  Han- 
nibal &  St.  J.  R.  Co.  53  Mo.  509 
(1873)  ;  State  r.  Waltham,  48  M". 
55    (1871)  ;     Rehberg    v.    Mayor,    99 


342 


HOMICIDE. 


[chap.  XIV. 


himself  to  the  facts  brought  out  in  evidence.^  Thus  it  has 
been  hekl  that  where  a  counsel  is  permitted,  over  objection 
and  exception,  to  comment  on  facts  pertinent  to  the  issue, 
but  not  in  evidence,  this  will  be  error  and  sufficient  excuse 
for  o-rantiufr  a  new  trial,^  because  the  law  and  rules  of  evi- 
dence  are  thereby  violated  and  the  full  benefit  of  trial  by 
jury  is  denied.^  The  same  is  true  of  an  appeal  made  to  preju- 
dice, foreign  to  the  case,  not  made  by  the  evidence,  and 
calculated  to  have  an  injurious  effect  upon  the  cause  of  the 
defendant.* 

The  misconduct  of  the  counsel  may  be  so  flagrant  as  to 
Avarrant  the  court  in  interfering  without  objection;^  and  some 
cases  hold  that  where  the  counsel  grossly  abuses  his  privileges, 
to  the  manifest  prejudice  of  the  defendant,  it  is  the  duty  of 
the   judge  to  stop  him  then  and  there,  and  that  if  he  fails 


N.  Y.  652  (1885)  ;  s.c.  2  N.  E.  Rep. 
11 ;  Larkins  v.  Tarter,  3  Sneed. 
(Tenn.)  681  (1856)  ;  Kaime  v.  Trus- 
tees, 49  Wis.  371  (1880)  ;  s.c.  5  N.  W. 
Rep.  838  ;  Hilliard  New  Trial,  225  ; 
Proffiit  Jury  Trial,  §  249. 

1  Dickerson  v.  Burke,  25  Ga.  225 
(1858)  ;  Doster  v.  Brown,  25  Ga.  24 
(1858)  ;  Read  i-.  State,  2  Ind.  438 
(1850)  ;  Walker  v.  State,  6  Blackf. 
(Ind.)  1  (1841)  ;  State  r.  Lee,  66  Mo. 
165  (1877)  ;  Loyd  ik  Hannibal  &  St.  J. 
R.  Co.  53  Mo.  509  (1873)  ;  Cook  v. 
Ritter,  4  E.  D.  Smith  (N.  Y.)  253 
(1855). 

2  Yoe  V.  People,  49  111.  410  (1868)  ; 
Kennedy  v.  People,  40  III.  489  (1866)  ; 
Bill  V.  People,  14  111.  432  (1853)  ; 
Brown  v.  Swineford,  44  Wis.  282 
(1878)  ;  s.c.  28  Am.  Rep.  582 ;  7 
Cent.  L.  J.  208. 

3  Wolffe  V.  Minnis,  74  Ala.  386 
(1883)  ;  Cross  i:  State,  68  Ala.  476 
(1881)  ;  Dickerson  v.  Burke,  25  Ga. 
225  (1858)  ;  McNabb  v.  Lockhart,  18 
Ga.  495  (1855)  ;  Hennies  v.  Vogel,  66 
III.  401  (1872)  ;  Yoe  v.  People,  49 
111.  410  (1868)  ;  Kennedy  v.  People, 
40  111.  489  (1866)  ;  Bill  v.  People,  14 
Rl.  432  (1853)  ;  Anderson  v.  State, 
104  Ind.  467  (1885)  ;  s.c.  4  N.  E.  Rep. 
63;  Brow  v.  State,  103  Ind.  133 
(1885)  ;  s.c.  2  N.  E.  Rep.  296;   Epps 


V.  State,  102  Ind.  539  (1885)  ;  s.c.  5 
Am.  Cr.  Rep.  517  ;  1  N.  E.  Rep.  491  ; 
Bessette  v.  State,  101  Ind.  85  (1884)  ; 
Proctor  i'.  DeCamp,  83  Ind.  559 
(1882)  ;  Morrison  v.  State,  76  Ind. 
335  (1881);  Combs  v.  State,  75  Ind. 
215  (1881)  ;  Ferguson  v.  State,  49 
Ind.  33  (1874)  ;  Read  v.  State,  2  Ind. 
438  (1850)  ;  People  v.  Dane,  59  Mich. 
550  (1886)  ;  s.c.  26  N.  W.  Rep.  781 ; 
Cavanah  v.  State,  50  Miss.  299  (1879)  ; 
Perkins  v.  Guy,  55  Miss.  153  (1877)  ; 
State  r.  Jackson,  95  Mo.  623  (1888)  ; 
s.c.  8  S.  W.  Rep.  749 ;  State  v.  Lee, 
66  Mo.  165  (1877)  ;  Bohanan  v.  State, 
18  Neb.  57  (1885)  ;  s.c.  24  N.  W.  Rep. 
391  ;  Tucker  v.  Henniker,  41  N.  H. 
317  (1860)  ;  State  v.  Smith,  75  N.  C. 
306  (1876)  ;  Union  Ins.  Co.  v.  Cliecver, 
36  Ohio  St.  201  (1880);  Cartwright  ■ 
V.  State,  16  Tex.  App.  473  (1885)  ; 
Brown  v.  Swineford,  44  Wis.  282 
(1878)  ;  Proffat  on  Jury  Trials,  §  250. 

4  See  Hennies  v.  Vogel,  66  111.  401 
(1872)  ;  Kinnaman  v.  Kinnamaii,  71 
Ind.  417  (1880)  ;  Ferguson  v.  State, 
49  Ind.  33  (1874);  Tucker  v.  Henni- 
ker, 41  N.  H.  317  (1860)  ;  State  v. 
Smith,  75  N.  C.  306  (1876). 

5  Berry  v.  State,  10  Ga.  511  (1851)  ; 
Saunders  v.  Baxter,  6  Heisk.  (Tenn.) 
369  (1871). 


SEC.  307.]  COUNSEL.  343 

to  do  so,  and  the  impropriety  is  gross,  it  will  be  ground  for 
a  new  trial.^  The  weight  of  authority  and  reason,  however, 
is  thousrht  to  be  to  the  effect  that  the  court  is  under  no  obli- 
srations  to  interfere,  and  a  failure  to  so  interfere  will  not  fur- 
nish  ground  for  a  new  trial  ;2  and  such  action  by  the  court 
will  be  sustained  in  the  appellate  court,  unless  there  has  been 
a  gross  abuse  of  discretion.^ 

It  has  been  held  to  be  error  for  counsel  for  the  state  in  a 
murder  trial,  in  argument  to  the  jury,  to  comment  on  the  fre- 
quent occurrence  of  murder  in  the  community  and  the  forma- 
tion of  vigilance  committees  and  mobs,  and  to  state  that  the 
same  are  caused  by  laxity  in  the  administration  of  the  law, 
and  that  they  should  make  an  examjjle  of  the  defendant ; 
and  for  the  court,  upon  objection  by  the  defendant  to  such 
language,  to  remark  to  the  jury  that  such  matters  are  proper 
to  be  commented  upon.'^ 

Sec.  307.    Same  —  Abusive  lang-iiage  exciting  prejudice. 

—  Abusive  language  exciting  prejudice  is  ground  for  revers- 
ing a  conviction  where  it  appears  that  the  remarks  were 
grossly  unwarranted  and  improper,  and  where  they  were  of  a 
material  character  and  calculated  to  injuriously  affect  the 
defendant's  rights ;  ^  but  it  was  recently  held  by  the  Supreme 
Court  of  Michigan  in  the  case  of  People  v.  Welch  ^  that 
although  the  remarks  of  the  prosecuting  officer  are  to  some 
extent  improper,  they  are  not  a  ground  for  reversal  where 
there  is  no  showing  that  the  defendant  was  seriously  prejudiced 
thereb}^  and  no  request  was  made  for  an  instruction  that  such 
remarks  should  not  be  allowed  to  influence  the  verdict. 

Where  a  prosecuting  officer  in  closing  his  address  to  the 

1  Dickerson  r.  Burke,  25  Ga.  225  (1860)  ;  Gillooley  v.  State,  58  Iiid. 
(1858)  ;  Ferguson  v.  State,  49  Ind.  182  (1877)  ;  St.  Louis  S.  E.  R.  Co.  v. 
33  (1874)  ;    Proctor    v.  DeCamp,    83     Myrtle,  51  Ind.  566  (1875). 

Ind.    559    (1882) ;    State    v.    Guy,   69  ^  Forsyth   v.   Cothran,  61    Ga.  278 

Mo.  430   (1879)  ;    Coble  v.  Coble,  79  (1878)  ;  Farman  v.  Lauman,  73  Ind. 

N.  C.  589    (1878)  ;    State    v.   Under-  568  (1880)  ;   Kinnaman  v.  Kinnaman, 

wood,  77  N.  C.  502  (1877)  ;    Jenkins  71  Ind.  417  (1880)  ;     St.  Louis   S.  E. 

r.  North  Carolina   Ore  Dressing  Co.,  R.  Co.  v.  Myrtle,  51  Ind.  566  (1875). 
65  N.  C.  563  (1871)  ;  Devries  v.  Phil-  *  Ferguson    v.    State,    49    Ind.    33 

lips,  63  N.  C.  53  (1868)  ;  Hilliard  on  (1874). 
New  Trials,  225.  5  pierson    v.    State,    18    Tex.    App. 

2  Davis  V.  State,  33  Ga.  98  (1861)  ;  524  (1885). 

Tucker   v.    Henniker,   41   N.    H.   317  «  45  N.  W.  Rep.  482  (1890). 


344  HOMICIDE.  [chap.  XIV. 

jury  said :  "  The  defendant  in  this  case  has  stooped  so  low  as 
to  drag  before  you  the  infidelity  of  liis  dead  wife,  and  to  pub- 
lish her  before  the  court-house  as  a  prostitute,"  it  was  held 
that  this  language  was  not  cause  for  new  trial.  The  court 
i-emarking :  "  We  cannot  deny  that  this  remark  was  unfair. 
A  defendant  has  a  right  unquestionably  to  introduce  all  such 
matters  of  defence  as  are  admissible  and  calculated  to  miti- 
gate, excuse,  or  justify  his  actions,  and  while  the  prosecuting 
officer  has  a  right  to  comment  upon  the  nature  and  character 
of  such  defences,  still  in  doing  so  it  is  most  improper  to 
denounce  and  vilify  him  on  account  of  his  defences."  ^  And 
in  Martin  v.  State  ^  the  following  language  was  held  ground 
for  reversal,  to  wit :  The  prosecutor  said :  "  The  defendant 
is  a  man  of  bad,  dangerous,  and  desperate  character,  but  I 
am  not  afraid  to  denounce  the  butcher  boy,  although  I  may, 
on  returning  to  my  home,  find  it  in  ashes  over  the  heads  of 
my  defenceless  wife  and  children." 

It  has  been  said  that  simply  referring  to  the  defendant  as 
"  a  murderer  "  is  not  ground  for  reversal ;  ^  and  in  Anderson 
V.  State,^  where  the  prosecuting  officer  called  the  defendant 
a  "  dirty  dog,"  and  stated  that  in  separating  the  prosecuting 
witness  from  her  companions  he  acted  "  like  a  dirty  dog  as 
he  was,"  the  court  held  this  was  not  ground  for  a  new  trial, 
saying :  "  It  was,  strictly  speaking,  a  breach  of  professional 
decorum  to  apply  opprobrious  epithets  to  the  appellant  in 
advance  of  the  introduction  of  any  evidence  from  which  dis- 
paraging inferences  might  have  been  drawn,  and  the  circuit 
court  would  have  been  justified  in  restraining  the  prosecuting 
attorney  from  the  use  of  such  epithets  in  a  merely  opening 
statement;  but  the  breach  of  professional  decorum  thus 
involved,  ought  not  to  be  regarded  as  of  sufficient  importance 
to  cause  a  reversal  of  judgment." 

Sec.  308.  Same  —  Misstatement  of  facts.  —  Assumptions. 
—  A  misstatement  of  facts,  by  the  prosecuting  officer  in  his 
argument  to  the  jury,  is  always  ground  for  the  reversal  of  a 
conviction.     Thus  in  his  argument  to  the  jury  the  prosecut- 

iPierson    v.   State,   18  Tex.   App.  8  state  r.  Griffin,  89  Mo.  49  (1880); 

524  (1885).  s.c.  1  S.  W.  Kep.  87. 

2  63  Miss.  505  (1886).  *  104  Ind.  466  (1885)  ;  s.c.  4  N.  E. 

Rep.  63. 


SEC.  309.]  COUNSEL.  345 

ing  officer  has  no  right  to  state  as  facts  what  he  alleged  had 
occurred  in  the  case  of  another  homicide  similar  to  the  one 
on  trial.^  And  where  on  a  trial  for  murder,  the  defence  being 
insanity,  a  remark  of  the  district  attorney  to  the  jury,  "  You 
can  make  no  mistake  in  convicting  the  defendant.  If  he 
were  insane,  the  governor,  the  coui't,  and  I  will  secure  a  com- 
mission to  inquire  into  the  fact,  and  will  see  that  no  injus- 
tice be  done  him,"  was  held  to  be  ground  for  a  new  trial. 
The  court  say  :  ''  That  the  remark  prejudiced  the  juiy  might 
be  presumed  from  the  fact  that,  although  there  were  fifteen 
witnesses  on  the  question  of  insanity,  the  jury,  after  consult- 
ing only  half  an  hour,  returned  a  verdict  of  guilt3%"  ^ 

Any  improper  remarks  or  assumptions  of  the  prosecuting 
officer  in  his  address  to  the  jury  which  tend  to  prejudice  the 
jurors  against,  or  otherwise  injure  the  course  of  the  defend- 
ant, will  be  ground  for  setting  a  verdict  of  conviction  aside. 
Thus  in  the  case  of  Cartwright  v.  State,^  on  tlie  trial  of  an  in- 
dictment for  murder,  at  the  end  of  the  opening  address  of  the 
prosecuting  attorney  the  audience  applauded.  In  his  closing 
argument  the  prosecuting  attorney  alluded  to  this,  and  ap- 
proved it.  The  court  did  not  check  or  reprimand  either  the 
audience  or  the  counsel,  nor  caution  the  jury.  This,  it  seems, 
was  error.  But  in  a  case  where  tliere  was  evidence  that  the 
defendant,  under  indictment  for  murder,  was  a  herder  on  the 
plains;  that  he  carried  two  revolvers  and  a  knife,  of  which  he 
made  a  display,  and  that  his  companions  had  four  revolvers ; 
it  was  held  that  these  facts  warranted  the  district  attorney 
in  his  argument  to  the  jury  in  describing  him  as  "  Billy  the 
Kid  or  Jesse  James  sort  of  a  cowboy."  ^ 

Sec.  309.    Same  —  Coiniiientiiig'  on  failure  to  testify,  etc. 

—  The  prosecuting  officer  should  not  be  permitted  to  com- 
ment upon  the  failure  of    the  defendant   to  testify  ;  ^  yet    a 

1  Cross  I'.  State,  68  Ala.  476  (1881).     tance  in   such  cases.      People   r.   Ah 

2  Commonwealth  i..  Smith,  10  Phila.     Fook,  04  Cal.  380  (1883). 

(Pa.)  189  (1873).  s  lo   Tex.  App.    473    (1884)  ;    s.c. 

Where  counsel,  on  a  trial  for  mur-  49  Am.  Rep.  826. 

der,  read  from  the  cases  where   con-  ■*  Simmerman  v.  State,  16  Neb.  615 

viction  of  innocent  persons  have  been  (1884)  ;  s.c.  21  N.  W.  Rep.  387. 

had   on  circumstantial    evidence,  the  ^  p^^tp  ,,  graves,  9n  Mo.  510  (1888); 

court  may  properly  caution   the  jury  s.c.  8   S.  \Y.  Rep.   739  :    Cartwritjlit  r. 

against   attaching   too   much    impor-  State,  16  Tex.  App.  473  (1884).   Cases 


346  HOMICIDE.  [chap.  XIV. 

conviction  will  not  necessarily  be  reversed  for  an  improper 
attempt  on  the  part  of  the  prosecuting  attorney  to  comment 
on  the  fact  that  the  defendant  did  not  testify,  the  court  at 
once  interfering  and  duly  warning  the  jury.i 

In  Blackman  v.  State  ^  upon  an  indictment  for  murder, 
the  defendant,  before  the  jury  was  impanelled,  made  a 
motion  for  a  continuance  on  the  ground  of  the  absence  of 
witnesses,  and  setting  forth,  in  his  motion,  what  he  expected 
to  prove  by  them.  The  witnesses  were  sent  for,  but  were 
not  called  upon  to  testify.  In  his  argument  to  the  jury,  the 
attorney  for  the  state,  against  the  objection  of  defendant's 
counsel,  commented  upon  the  failure  of  the  defendant  to 
prove  what  he  said  he  could  prove  by  the  witnesses,  and 
insisted  that  his  failure  was  evidence  of  guilt,  and  this  was 
held  to  be  reversible  error. 

Sec.  310.  Same  —  Discretion  of  court  in  granting  new 
trial. — It  has  been  established  by  an  almost  if  not  quite 
unbroken  line  of  decisions  that  going  out  of  and  beyond  the 
evidence  by  prosecuting  officers  in  their  argument  to  the 
jury,  can  be  a  cause  for  reversal  only  when  a  "  sound  legal 
discretion  "  has  been  violated ;  that  is  to  say,  the  trial  court 
exercises  a  discretion  in  controlling  the  address  of  counsel 
and  in  granting  new  trials  on  the  alleged  ground  of  miscon- 
duct in  argument  to  the  jury.  The  reason  for  this  seems  to 
be  that  the  trial  judge,  witnessing  the  alleged  error,  is  best 
prepared  to  say  whether  the  defendant  was  injured  by  it.^ 

reversed  for  such  error  :   Fletcher  v.  ^  Cases  ■wrhere  remarks  of  coun- 

State,  49  Iiul.  124   (1874)  ;    State   v.  sel    were    held    to    be   sufficient 

Upham,  38  Me.  2(31   (1854) ;  Devries  cause    for    reversal :    Mitchum    v. 

V.  Phillips,  03  N.  C.  53  (18(J8)  ;  Bum-  State,  11  Ga.  615  (1852)  ;  Yoe  f.  Peo- 

garner  v.  Manney,  10  Ired.  (N.  C.)  L.  pie,  49    111.  410    (1868)  ;    Farman    v. 

121  (1849).     Cases  where  such  argu-  Lauman,  73  Ind.  568  (1881)  ;  Fergu- 

nient  was   held  to  be  proper:  Smiley  son  v.  State,  49  Ind.  33  (1874)  ;  Win- 

V.   Burpee,    87    Mass.    (5    Allen)    568  ter  r.Sass,  19Kan.557  (1878);  Ornisby 

(1863) ;   State  v.  Degonia,  69  Mo.  485  i-.  Johnson,  1  B.  Mon.  (Ky.)  80  (1840) ; 

(1879)  ;    Chambers  v.  Greenwood,  68  Rolfe  v.  Rumford,  66  Me.  564  (1877); 

N.  C.  274   (1873)  ;  Peebles  i'.  Norton,  State  v.  Lee,  G6  Mo.  165  (1877)  ;  State 

64  N.  C.  374   (1870)  ;  Gray  v.  Burk,  v.  Kring,  64  Mo.  591  (1877)  ;  State  v. 

19  Tex.  228  (1857).  Reilly,  4  Mo.  App.  392  (1879)  ;  State 

1  Petite  V.  People,  8  Colo.  518  v.  Kring,  1  Mo.  App.  438  (1877)  ; 
(1885)  ;  s.c.  9  Pac.  Rep.  622.  Brownlee  v.   Hewit,  1    Mo.  App.  360 

2  78  Ga.  592  (1887)  ;  s.c.  10  Cr.  L.  (1877)  ;  State  v.  Foley,  45  N.  II.  466 
Mag.  71;  3  S.  E.  Rep.  418.  (1864)  ;  Tucker  v.  Ilenniker,  41  N.  II. 


SEC.  311.] 


COUNSEL. 


347 


Regarding  the  effect  of  instruction  to  the  jury  to  disregard 
the  improper  remarks  of  counsel  there  is  a  conflict,  in  the 
adjudged  cases ;  some  claiming  that  the  error,  if  any,  is 
thereby  cured,  others  contending  that  it  is  not.^ 

Sec.  311.  Argument  of  counsel  defending.  —  While  it 
is  always  within  the  discretion  and  power  of  the  court  to 
limit  the  time  of  argument  reasonably,  yet  it  is  the  substan- 
tial right  of  the  defendant  to  have  his  case  fairly  and  fully 
argued,  especially  if  the  charge  involves  his  life  ;  and  where 
it  clearly  appears  that  his  counsel  were  not  allowed  time 
sufficient  for  argument,  he  is  entitled  to  a  new  trial."  The 
usual  order  of  argument  requires  that  counsel  for  the  defend- 
ant shall  sum  up  the  evidence  in  liis  behalf  before  the  closing 
argument  for  the  prosecution,  and  the  fact  that  the  defence 
is  insanity,  and  that,  therefore,  the  defendant  has  the  burden 
to  prove  it,  does  not  so  change  the  proper  order  of  argument 
as  to  allow  his  counsel  to  open  and  close.''^  But  where  the 
order  of  argument  is  improperly  changed,  the  defendant  can- 
not be  heard  for  the  first  time  to  complain  in  the  appellate 
court.* 


317  (1860)  ;  Fry  v.  Bennett,  3  Bosw. 
(N.  Y.)  200  (1858)  ;  Coble  i-.  Coble, 
79  N.  C.  589  (1878)  ;  State  v.  Smith, 
75  N.  C.  306  (1876)  ;  Jenkins  v.  Ore 
Dressing  Co.,  65  N.  C.  563  (1871)  ; 
State  V.  Williams,  65  N.  C.  505  (1871)  ; 
Thompson  v.  State,  43  Tex.  268 
(1875)  ;  Brown  i\  Swineford,  44  Wis. 
282  (1878).  Cases  ^w■here  remarks 
of  counsel  •wrere  held  not  error : 
Central  R.  Co.  v.  Mitciicll,  63  Ga.  173 
(1879)  ;  Forsyth  v.  Cothran,  61  Ga. 
278  (1878)  ;  Cobb  r.  State,  27  Ga. 
698  (1859)  ;  McNabb  v.  Lockhart,  18 
Ga.  495  (1855)  ;  Bulloch  v.  Smith,  15 
Ga.  395  (1854)  ;  Berry  v.  State,  10 
Ga.  511  (1851)  ;  Kennedy  v.  People, 
40  111.  489  (1866)  ;  Combs  v.  State, 
75  Ind.  215  (1881)  ;  St.  Louis  &  S.  E. 
R.  Co.  V.  Mathi'as,  50  Ind.  65  (1875)  ; 
State  V.  Johnson,  76  Mo.  121  (1882)  ; 
State  V.  Mallon,  75  Mo.  355  (1882)  ; 
State  I'.  Stark,  72  Mo.  37  (1880) ;  Loyd 
I'.  Hannibal  &  St.  J.  R.  Co.,  53  Mo. 
509  (1873)  ;  State  v.  Underwood,  77 
N.  C.  502  (1877)  ;  Chambers  v.  Green- 


wood,  68  N.  C.  274  (1873)  ;  Larkins 
V.  Tartar,  3  Sneed.  (Tenn.)  681  (1856). 
See  Hoxie  v.  Home  Ins.  Co.,  33  Conn. 
471  (1866)  ;  Devries  v.  Haywood,  63 
N.  C.  53  (1868)  ;  Dickerson  ;;.  Burke, 
25  Ga.  225  (1858)  ;  Doster  v.  Brown, 
25  Ga,  24  (1858)  ;  St.  Louis  &  S.  E. 
R.  Co,  V.  Myrtle,  51  Ind.  666  (1875)  ; 
Read  v.  State,  2  Ind.  438  (1850)  ;  State 
V.  Degonia,  69  Mo.  485  (1879)  ;  State 
V.  Reilly,  4  Mo.  App.  392  (1879)  ; 
Free  v.  State,  1  MciMull.  (S.  C.)  494 
(18.36)  ;  Saunders  ;•.  Baxter,  6  Heisk. 
(Tenn.)  369  (1871)  ;  Wightman  v. 
Providence,  1  Cliff.  C.  C.  524  (1860). 

1  Mitchum  v.  State,  11  Ga.  615 
(1852)  ;  Rolfe  v.  Rumford,  66  Me. 
564  (1877);  Tucker  r.  Henniker,  41 
N,  H.  317  (1860). 

2  People  V.  Keenan,  13  Cal.  581 
(1859).  See  Kizer  >:  State,  12  Lea 
(Tenn.)  564  (188.3). 

3  Loeffner  v.  State,  10  Obio  St.  598 
(1857)  ;  s.c.  Law.  Insan.  432. 

*  People  V.  Ah  Hop,  1  Idabo,  698 
(1878). 


348 


HOMICIDE. 


[chap.  XIV. 


The  court  lias  control  over  the  defendant's  counsel  and  their 
arguments,  as  well  as  over  the  counsel  for  the  prosecution ; 
and  where  they  unduly  press  upon  the  jury  the  fact  of  the  de- 
fendant's punishment,  if  he  is  convicted,  it  is  not  error  for 
the  court  to  check  such  remarks  by  counsel.^ 

Sec.  312.  Same  —  Limiting  time  of  argument.  —  Under 
the  constitutional  provisions  heretofore  recited'^  in  all  criminal 
prosecutions  the  accused  has  a  right  to  be  heard  by  himself 
or  counsel,  and  it  may  be  regarded  as  a  settled  law  in  the 
courts  of  this  country,  that  any  abridgment  of  this  right 
which  deprives  the  accused,  on  trial,  of  the  time  necessary 
to  make  his  defence,  fully  and  fairly,  is  an  error  for  Avhich  a 
new  trial  will  be  granted.^  But  the  right  of  the  accused  to 
be  heard  is  no  more  generally  recognized  and  sustained  by 
authority  than  is  the  power  of  courts  to  prevent  abuse  by 
limiting  the  argument  within  reasonable  bounds,*  in  the 
exercise  of  a  "sound  legal  discretion.''^     Yet  while  insisting 


1  State  V.  Dodson,  16  S.  C.  453 
(1881). 

2  See  ante,  §  302. 

^  People  r.  Keenan,  13  Cal.  581 
(1859) ;  State  v.  Hoyt,  47  Conn.  518 
(1880) ;  Williams  v.  State,  60  Ga.  367 
(1878);  Hunt  v.  State,  49  Ga.  255 
(1873);  Wliite  v.  People,  90  III.  117 
(1878);  Lynch  v.  State,  9  Ind.  541 
(1857);  State  w.  Riddle,  20  Kan.  711 
(1878);  Witifjo  v.  State,  62  Miss.  311 
(1884)  ;  s.c.  6  Cr.  L.  Map;.  824;  State 
V.  Linney,  52  Mo.  40  (1873) ;  State  ;;. 
Pajje,  21  Mo.  257  (1855);  State  v. 
Collins,  70  N.  C.  241  (1874);  Dille 
V.  State,  34  Oliio  St.  617  (1878); 
Weaver  v.  State,  24  Oliio  St.  584 
(1874)  ;  Bowen  v.  State,  3  Tex.  App. 

617  (1878)  ;  Word  ;;.  Commonwealth, 
3  Leigh  (Va.)  743  (1831);  Cooley 
Const.  Lim.  336. 

*  Dobbins  v.  Oswalt,  20  Ark.  619 
(1859)  ;  People  v.  Keenan,  13  Cal. 
581  (1859);  State  v.  Hoyt,  47  Conn. 

618  (1880)  ;  Williams  v.  State,  60  Ga. 
367  (1878)  ;  Hunt  r.  State,  49  Ga.  255 
(1873);  White  v.  People,  90  11!.  117 
(1878)  ;  Musselman  v.  Pratt,  44  Ind. 
126  (1873)  ;  Lynch  v.  State,  9  Ind.  541 
(1857);  State  i;.  Kiddle,  20  Kan.  711 


(1878)  ;  Wingo  v.  State,  62  Miss.  311 
(1884)  ;  s.c.  6  Cr.  L.  Mag.  824;  State 
V.  Linney,  52  Mo.  40  (1873);  Freligh 
V.  Ames,  31  Mo.  253  (1860) ;  State  v. 
Page,  21  Mo.  257  (1855)  ;  State  v.  Col- 
lins, 70  N.  C.  241  (1874);  Dille  v. 
State,  34  Ohio  St.  617  (1878) ;  Weaver 
V.  State,  24  Ohio  St.  584  (1874); 
Bowen    v.    State,   3    Tex.    App.   617 

(1878)  ;  Word  v.  Commonwealth,  3 
Leigh  (Va.)  743  (1831) ;  Cooley  Const. 
Lim.  3.36. 

5  Brooks  v.  Perry,  23  Ark.  ,32 
(1861);  Dobbins  v.  Oswalt,  20  Ark. 
619  (1859);  Hunt  v.  State,  49  Ga. 
255  (1873)  ;  Musselman  v.  Pratt,  44 
Ind.  126  (1873)  ;  Rosser  v.  McCoUy, 
9  Ind.  587  (1857);  Cory  v.  Silcox,  5 
Ind.  370  (1854);  State  v.  Williams, 
69  Mo.  no  (1878);  State  v.  Linney, 
52  Mo.  40  (1873)  ;  Trice  v.  Hannibal 
&  St.  J.  R.  Co.  35  Mo.  416  (1865); 
Freligh  v.  Ames,  31  Mo.  253  (1860); 
State  r.  Page,  21  Mo.  257  (1855); 
Naughton  v.  Stagg,  4  Mo.  App.  271 

(1879)  ;  State  v.  Collins,  70  N.  C.  241 
(1874)  ;  Weaver  v.  State,  24  Ohio  St. 
584  (1874);  Burson  v.  Mahoney,  6 
Baxt.  (Tenn.)  304  (1873). 


SEC.  312.] 


COUNSEL. 


349 


upon  the  right  thus  to  limit  the  time  of  argument  judges  have 
universally  displayed  the  utmost  reluctance  to  exercise  such 
power,  because  the  right  to  "  try  nien  by  the  hour-glass  "  is 
declared  dangerous  in  the  extreme.^ 

It  has  been  said  that  if  the  privilege  of  counsel  were  not 
subject  to  any  restraint  as  to  the  time  consumed  in  argument, 
"  the  fair  purpose  for  which  courts  of  justice  were  instituted 
would  or  might  be  defeated."-  Thus  it  is  said  by  Judge 
Bynum,  in  the  case  of  State  v.  Collins,^  that  in  an  early  North 
Carolina  case  ^  an  eminent  counsel  of  that  state  confusedly 
spoke  against  time  to  save  the  life  of  the  accused  by  the  ex- 
piration of  the  term  of  the  court.  In  Kizer  v.  State, °  upon  a 
trial  for  murder,  the  prisoner's  counsel,  three  in  number,  were 
limited  to  seventy  minutes  for  argument,  which  time  they 
divided  equally  between  them :  on  appeal  it  was  held  that 
while  the  action  of  the  trial  court  in  thus  limiting  them  to 
so  short  a  time,  over  their  objection,  was  open  to  criticism, 
yet  it  was  apparent  that  the  evidence  sustained  the  verdict, 
and  that  no  injustice  had  been  done,  and,  as  the  exception 
was  general,  a  reversal  should  not  be  ordered.^ 


1  People  V.  Keenan,  1.3  Cal.  581 
(1859);  Hunt  v.  State,  49  Ga.  255 
(1873);  Lynch  v.  State,  9  Ind.  541 
(1857)  ;  Commonwealth  v.  Porter,  51 
Mass.  (10  Mete.)  2G3  (1845);  State 
V.  Collins,  70  N.  C.  241  (1874)  ,  Word 
V.  Commonwealth,  3  Leigh  (Va.)  743 
(1831);  Cooley  Const.  Li m.  336. 

2  State  V.  Hoyt,  47  Conn.  518 
(1880);  s.c.  36  Am.  Rep.  89;  State 
r.  Collins,  70  N.  C.  241  (1874)  ;  s.c.  16 
Am.  Rep.  771;  Week's  Atty.  §  111; 
Proff.  Jur.  Tr.  246. 

3  70  N.  C.  241  (1874)  ;  s.c.  16  Am. 
Rep.  771. 

*  In  re  Spier,  1  I)cv.  (N.  C.)  L. 
491  (1828). 

5  12  Lea  (Tenn.)  564  (1883). 

6  In  People  v.  Keenan,  13  Cal.  581 
(1879),  the  verdict  in  a  capital  case 
was  set  aside  because  the  court  limited 
the  time  for  tlie  argument  against  the 
prisoner's  consent ;  but  the  court  did 
not  question  the  right  of  the  trial 
Judge  to  limit  the  counsel  to  a  reason- 
able time. 


In  State  v.  Hoyt,  47  Conn.  518 
(1880)  ,  s.c.  36  Am.  Rep.  89,  it  is  held 
that  the  restriction  of  an  argument  in 
a  murder  case  to  four  hours  on  each 
side  is  valid. 

In  Williams  v.  State,  60  Ga.  367 
(1878)  ;  s.c.  27  Am.  Rep.  412,  it  is 
held  that  in  the  trial  of  a  felony, 
whether  the  prisoner  is  heard  through 
one  counsel  or  two,  the  length  of  the 
argument  is  not  a  matter  for  pre- 
determination by  the  court.  In  the  pre- 
vious case  of  Hunt  v.  State,  49  Ga.  255 
(1873),  it  was  held  error  to  limit  the 
argument  to  forty  minutes  in  the  case 
of  an  assault  with  intent  to  murder. 

In  State  v.  Collins,  70  N.  C.  241 
(1874)  ;  s.c.  16  Am.  Rep.  771,  it  was 
held  that  in  trials  for  cajiital  offences 
the  presiding  judge  has  tiie  right  to 
regulate,  by  reasonable  rules  and  reg- 
ulations, the  arguments  in  the  case, 
and  that  it  was  no  good  ground  for  a 
new  trial  that  the  counsel  for  the 
prisoner  was  limited  by  the  court  in 
his  remarks  to  one  hour  and  a  half. 


350                                                HOMICIDE.  [chap.  XIV. 

In  Dille  v.  State,  34  Ohio  St.  617  who   were    limited   by   the   court    to 

(1878)on  the  trial  of  one  charged  with  thirty  minutes  in  the  argument  to  the 

a  felony,  eleven  witnesses  were  exam-  jury.      This    was    held    an    abuse   of 

ined,  and  the  evidence,  whicli  occupied  power  which   prevented  a  fair   trial. 

one-Iialf   a  day  in  its    delivery,   was  In  the  earlier  case  of  Weaver  v.  State, 

circumstantial    and   conflicting.     The  24  Ohio  St.  584  (1874),   a  limitation 

accused  was  defended  by  two  counsel,  to  five  hours  on  a  side  was  sustained. 


CHAPTER   XV. 

ARRAIGNMENT    AND   PLEA. 

Sec.  313.  Necessity  and  sufficiency. 

Sec.  314.  Same  —  Ke-arraignment. 

Sec.  315.  Waiver  of  reading  on  arraignment. 

Sec.  310.  Witlidrawal  of  plea  —  Discretion  of  court. 

Sec.  317.  Same  —  Statutory  provisions. 

Sec.  318.  Same  —  Hearing  of  evidence. 

Sec.  319.  Pleading  not  guilty  —  Duty  of  court. 

Sec.  320.  Same  —  Nolo  contendere. 

Sec.  321.  Pleading  guilty  —  Ascertaining  degree  —  Retraction  of  plea. 

Sec.  322.  Pleading  former  jeopardy. 

Sec.  323.  Same —  What  is  a  sufficient  plea  of. 

Sec.  313.  Necessity  and  sufficiency.  —  It  may  be  laid 
down  as  a  general  rule  that,  in  all  prosecutions  for  homicide, 
as  well  as  for  other  crimes,  the  defendant  must  be  arraigned 
in  the  court  of  trial,^  in  order  that  he  may  have  an  oppor- 
tunity to  plead  to  the  indictment.^  Where  the  prosecution 
is  for  a  capital  offence,  arraignment  cannot  be  waived,'^  but  it 
is  thought  that  the  defendant  may  waive  the  reading  of  the 
indictment.* 

It  is  held  in  Pate  v.  State  ^  that  it  is  essential  to  the  suffi- 

1  See  People  v.  Gaines,  52  Cal.  480  408    (1876)  ;   Early   v.    State,  1  Tex. 

(1877)  ;    People    v.    CorLctt,    28    Cal.  App.    248    (1876)  ;    Holden    v.    State, 

330  (1865)  ;  Fletcher  v.  State,  54  Ind.  1  Tex.  App.  225  (1876)  ;  Rex  v.  Lan- 

462  (1876)  ;  Graeter  v.  State,  54  Ind.  caster,    1    How.    St.    Tr.    39,   45,   46 

159  (1870)  ;  PowelU'.  United  States,  (1322);     Anonymous,     3    Mod.    205 

Morris    (Iowa)    17    (18.39)  ;    State    v.  (1089)  ;  4  Bl.  Comm.  322. 

Knne,  32  La.  An.  099  (1880);   State  -  ^ee   Steagald   i'.    State,   22   Tex. 

V.  Epps,  27  La.  An.  227  (1875)  ;  Opin-  App.  464  (1886)  ;   s.c.  9  Cr.  L.  Mag. 

ion  of  Justices,    91    Mass.   (9  Allen)  515;    3    S.    W.    Rep.    771;   Nolen   v. 

585  (1864)  ;  Grigg  v.  People,  31  Mich.  State,  8  Tex.  App.  585  (1880). 

471    (1875);    Sartorious  v.   State,  24  3  Elick    v.  Territory,  1  Wash.  Tr. 

Miss.    602    (1852)  ;    State  v.   Barnes,  136  (1861). 

59  Mo.  154  (1875)  ;  People  v.  Bradner,  <  Minich   v.   People,   8    Colo.    440 

107  N.  Y.  1  (1887)  ;  s.c.  13  N.  E.  Rep.  (1885)  ;  s.c.   5    Am.   Cr.   Rep.   20;  9 

87;  Pringle  v.  State,  2  Tex.  App.  300  Pac.  Rep.  4.     See  j>ost,  §  315. 

(1877);  Smith  v.  State,  1  Tex.  App.  ^  21  Tex.  App.  191  (1887). 

351 


352  HOMICIDE.  [chap.  XV. 

ciency  of  a  conviction  that  the  defendant  plead  to  the  in- 
dictment, or  that  the  plea  of  not  guilty  be  entered  for  liira ; 
which  fact,  on  appeal,  must  appear  in  the  final  judgment 
brought  up  Muth  the  record.  And  if  the  record  in  the  trial 
of  an  indictment  for  homicide  fails  to  disclose  affirmatively 
that  a  plea  to  the  indictment  was  entered  either  by  or  for 
the  defendant,  such  record  on  its  face  shows  a  mistrial,  and 
that  the  proceeding  was  erroneous,  at  least ;  and  a  recital  in 
a  bill  of  exceptions  that  the  defendant  pleaded  not  guilty  will 
not  supply  the  omission,^  because  the  record  must  show  affirma- 
tively that  the  defendant  was  arraigned,  or  waived  it,  and 
that  he  pleaded  to  the  indictment  or  information,  or  standing 
mute  and  refusing  to  answer,  a  plea  was  entered  for  him  by 
the  court.^  But  it  is  thought  that  a  formal  plea  of  not  guilty 
is  not  necessary  to  put  the  defendant  on  trial.-^ 

The  failure  of  the  court  to  arraign  the  defendant,  or  re- 
quire him  to  plead  to  the  indictment,  can  only  be  saved  by 
presenting  the  omission  as  a  ground  for  a  new  trial.^  This  is 
because  of  it  being  tlie  duty  of  the  lower  court  to  require  a 
plea  before  proceeding  with  the  trial,  and  it  must  be  presumed 
that  the  court  performed  its  duty,  and  when  nothing  to  the 
contraiy  appears,  it  will  be  presumed  that  a  j)lea  was  required 
and  interposed.  The  appelhite  court  must  presume  in  favor 
of  the  regularity  and  validity  of  the  proceedings  of  the  lower 
courts,  until  tlie  contrary  is  made  to  appear  b}'  the  record.^ 

It  is  said  that  the  person  must  answer  for  himself,  and  in 
his  own  proper  person,  unless  lie  is  shown  to  be  incapacitated, 
when  counsel  may  plead  "  not  guilty ''  for  him.*^  Thus  in  Elick 
V.  Territory "  the  record  of  the  proceedings  on  an  indictment 
for  murder  contained  the  following  entry :  "  Comes  now  C, 

1  Bovven    ;■.    Stnte,    108    Ind.    411  (188:3);    Indianapolis   v.   Murphy,  91 

(188())  ;  s.c.  9  N.  K.  Rep.  378.  Ind.    382    (188;3)  ;  Drinkout  v.  Eagle 

-Siioffner   v.    State,   93    Ind.    olO  Mncli.    Works,   90   Ind.    423    (l^^-^)  ; 

(1883);  Tindali  v.  State,  71   Ind.  314  Brown  r.  Anderson,  90  Ind.  93  (18«3); 

(1880);    Fletcher   v.    State,    54    Ind.  Powers  r.  State,  87  Ind.   144  (1882); 

462  (1876);  Graeter  r.  State,  54   Inil.  i'nett    v.   Heard,  86  Ind.  104   (1882); 

159    (1876);    McJunkins  v.  State,   10  Ilouek  r.  Bartlioid,  73  Ind.  21  (1880); 

Ind.  140  (1858).  Bowen  r.  Pollard,  71  Ind.  177   (1880); 

3  People    r.    Bradner,  107  X.  Y.  1  Crowell  v.  Peru,  41  Ind.  308  (1872). 
(1887)  ;  s.c.  13  N.  E.  Rep.  87.  «  Eliek    v.  Territory,  1   Wash.  Tr. 

■»  Billings   V.   State,    107    Ind.    54  130  (1861). 
(1886)  ;  s.c.  6  N.  E.  Rep.  914.  "  1  Wash.  Tr.  136  (1861). 

'^  See  ShofCner  v.  State,  93  Ind.  519 


SEC.  315.]  ARRAIGNMENT   AND   PLEA.  353 

who  prosecntes  in  behalf  of  the  territory,  and  the  defendant 
in  his  own  proper  person  and  by  his  attorneys.  The  prisoner 
on  being  asked  as  to  his  right  name  replied  that  it  was  '  Elick.' 
Arraignment  of  prisoner  waived  by  counsel,  and  upon  being 
asked  as  to  the  charge  in  the  indictment  pleaded  '  not  guilty ' 
by  counsel."  The  arraignment  and  plea  were  held  not  to  be 
sufficient,  and  that  all  subsequent  proceedings  were  without 
warrant  of  law.  But  where  a  defendant  on  his  arraignment 
makes  no  answer  personally,  but  his  attorney,  in  his  presence, 
pleads  "  not  guilty,"  himself  standing  mute,  the  arraignment 
and  plea  are  sufficient.^ 

Sec.  314.  Same — Re-arraig-nment. —  When  a  defendant 
has  been  once  arraigned,  and  has  pleaded  to  an  indictment 
for  murder  on  a  former  trial,  re-arraignment  is  unnecessary .^ 

Sec.  315.    Waiver    of   reading   on    arraignment.  —  It  is 

well  settled  that  whatever  the  constitution  or  statute  law  of 
the  state  requires  to  be  done  in  homicide  cases,  is  essential  to 
the  jurisdiction  and  power  of  the  court  to  convict,  and  can- 
not be  omitted  or  waived.^  And  for  this  reason  it  has  been 
held  that  a  waiver  of  the  reading  of  the  indictment  does  not 
affect  the  validity  of  the  trial  in  those  cases  where  a  copy  of 
the  indictment  has  been  furnished  to  the  person  as  required 
by  statute.'*  In  Cantwell  v.  State  °  it  is  said  that  in  Ohio  it  is 
well  established  that  the  defendant  cannot  be  prejudiced  by 
his  waiver  of  any  statutory  requisite  in  the  prosecution  of  a 
criminal  case ;  ^  but  in  the  more  recent  case  of  Billigheimer 
V.  State,^  it  is  maintained  that  in  the  trial  of  the  highest  grade 
of  crimes,  it  is  not  in  the  power  of  the  accused  to  waive  a 
trial  by  jury.^ 

1  People   V.   McCoy,   71    Cal.   .395  (1885) ;  s.c.   5   Am.   Cr.   Rep.   20 ;  9 

(1886) ;  s.c.  12  Pac.  Rep.  272  ;  Stewart  Pac.  Rep.  4  ;  Goodin  v.  State,  16  Oliio 

V.   State,    111    Ind.   554    (1887);   s.c.  St.  345  (1865). 
13  N.  E.  Rep.  59;  Bateman  v.  State, 64  ^  ig  O'-.io  St.  477,  481  (1869). 

Miss.  233  (1886)  ;  s.c.  1  So.  Rep.  172.  ^  Citing  Goodin  v.  State,  16  Oliio 

^  State  V.  Boyd,   38   La.   An.    374  St.    345    (1865)  ;    Williams   v.    State, 

(1886);   State  r."  Johnson,  10  La.  An.  12    Ohio   St.    622    (1861);     Doyle   v. 

457  (1855).  State,  17  Ohio,  225  (1848). 

3  Goodin  V.  State,  16  Ohio  St.  345  "^  .32  Ohio  St.  435,  441  (1877). 

(1865)  ;    Williams    v.  State,  12  Ohio  «  Citing  Cantwell  r.  State,  18  Ohio 

St.   622  (1861);    Doyle  v.    State,   17  St.  477   (1869);  Goodin   v.  State,   16 

Ohio,  222  (1848).  Ohio  St.  345  (186-5).     See  post,  §§  352 

*  See  Minicli  v.  People,  8  Colo.  440  to  383. 

23 


354  HOMICIDE.  [chap.  XV. 

Sec.  316.   Withdrawal  of  plea.  —  Discretion  of  court. — 

A  motion  to  withdraw  a  plea  of  guilty  in  order  to  allow  the 
defendant  to  demur  or  plead  insanity,  or  a  motion  to  with- 
draw a  plea  of  guilty,  before  judgment,  is  addressed  to  the 
sound  discretion  of  the  court.^  In  those  cases  where  the 
proper  showing  of  facts  is  made  by  affidavit  it  is  an  abuse  of 
judicial  discretion  not  to  allow  the  withdrawal  of  a  plea  of 
guilty  and  permit  a  plea  of  not  guilty  to  be  entered  in  its  stead. 
Such  a  showing  of  facts  is  made  when  the  affidavit  discloses 
(1)  that  the  affiant  is  not  guilty  of  the  crime  charged ;  ^  (2)  that 
it  is  the  first  offence  ;  ^  (3)  that  the  plea  of  guilty  was  entered 
through  indifference  and  without  due  deliberation  or  consulta- 
tion ;  3  (4)  that  the  plea  of  guilty  was  entered  from  the  hope 
that  the  punishment  to  which  the  accused  would  otherwise  be 
exposed  might  be  mitigated  ;  *  (5)  that  the  plea  was  entered 
through  mistake  ;  ^  or  (6)  that  the  defendant  was  ignorant  of 
the  law  and  was  arraigned  without  the  privilege  of  consulting 
counsel.'' 

But  where  the  parties  regarded  the  plea  of  not  guilty  on 
arraignment  as  having  been  withdrawn  for  the  purpose  of  a 
motion  to  dismiss  the  indictment  only,  and  proceeded  to  trial 
on  the  understanding  that  it  was  reinstated  when  the  motion 
was  denied,  an  objection  that  the  defendant  was  tried  without 
being  arraigned  or  pleading  to  the  indictment  is  not  tenable." 

A  withdrawal  of  the  plea  of  guilty  has  been  permitted 
where  it  was  forced  upon  the  defendant  through  the  fear  of 

1  Commonwealth  v.  Clmpman,  65  sound  judicial  discretion,  had  the 
Mass.  (11  Cush.)  422  (1850).  See  11  special  judge  permitted  the  with- 
Cr.  L.  Mag.  479;  17  Am.  L.  Rev.  567.  drawal  of  the  plea  of  guilty,  and  the 

2  Myers  v.  State,  115  Ind.  554  entry,  in  its  stead,  of  the  usual  plea. 
(1888);  s.c.  18  N.  E.  Rep.  42;  Mas-  Tlie  law  is  not  composed  of  a  series 
tronada  v.  State,  60  Miss.  87  (1882).  of  snares  and  pitfalls  for  the  unwary, 

3  People  V.  McCrory,  41  Cal.  458  neither  does  it  favor  wliat  Judge  Bliss 
(1871);  Gardner  v.  People,  106  111.  terms  'snap  judgments.'  Honslce  r. 
76  (1883);  s.c.  4  Cr.  L.  Mag.  881.     '  Cannefax,  40    Mo.  295.     If  these  re- 

*  People   V.   McCrory,   41   Cal.  458  marks  apply  in   a  civil  case,  then  a 

(1871);   Myers   i'.  State,  115  Ind.  554  fortiori    in     a     criminal    prosecution, 

(1888);  s.c.  18  N.  E.  Rep.  42  ;  Stephens  where  the  liberty  of  the  prisoner  is  at 

V.  St.-vte,  71   Mo.   535   (1880);    s.c.  11  stake." 

Cent.  L.  J.  5.     In   the   last  case  the  ^  T>nyis  r.  State,  20  Ga.  674  (1856). 

court  say  :   "  Viewing  the  matter,  then,  ^  Myprs    v.    State,    115    Ind.    554 

in  either  light,  we  feel  constrained  to  (1888)  ;  s.c.  18  N.  E.  Rep.  42. 

say    that    it   would  better  have    com-  "  People    v.  Bradner,  107   N.  Y.  1 

ported  with  tlie  proper  exercise  of  a  (1887)  ;  s.c.  13  N.  E.  Rep.  87. 


SEC.  316.] 


ARRAIGNMENT    AND   PLEA, 


355 


improper  violence.^  In  Myers  v.  State  ^  tlie  defendant  pleaded 
guilt}',  was  sentenced  to  ten  j-ears'  imprisonment,  and  the 
judgment  was  signed  by  the  judge.  On  the  next  morning, 
and  during  the  term  of  court,  the  defendant  moved  to  be 
allowed  to  substitute  a   plea   of   not  guilty,  and   presented 


1  Sanders    v.    State,   85    Ind.    318 
(1882)  ;  s.c.  4  Cr.  L.   Mag.  359.     It 
seems  that  in  such  a  case,  where  there 
has  been  an  error  of  law,  the  remedy 
is  by  that  of  recommendation  to  par- 
don signed  by  the  judges,  wliich  will 
be  granted  as  a  matter  of  course.     See 
Reg.    V.    Murphy,   L.  R.  2   P.  C.    35 
and  535  (1869).     Where  the  error  is 
one  of  fact  the  remedy  is  by  a  pro- 
ceeding called  a  writ  of  error  coram 
7iobis.     This  formerly  was  a  very  com- 
mon remedy  in  civil  actions,  but  was 
seldom  resorted  to  in  criminal  cases. 
Although    rarely    used    in     criminal 
cases,  we  find  it  conceded  by  courts 
and  writers  to  be  an  appropriate  rem- 
edy in  criminal  prosecutions,  as  well 
as  in  civil  actions.     Judge  Cooley,  in 
a  note  to  Blackstone's  Commentaries, 
says  :    "  In  this    chapter  Sir  William 
Blackstone   has  considered  only  the 
modes  by  which  a  judgment  may  be 
reversed  by  writ  of  error,  brought  in 
a  court  of  appeal,  and  has  stated  that 
this  can   be    done    only  for  error  in 
law.     There  is,  however,  a  proceeding 
to   reverse    a   judgment    by   writ    of 
error  in  the   same  court,   where    the 
error  complained  of  is  in  fact  and  not 
in  law,  and  where,  of  course,  no  fault 
is  imputed  to  the  court  in  pronounc- 
ing its  judgment.     This  writ  is  called 
the  writ  of  error  coram  nobis,  or  tlie 
writ  of   error  coram   vohis,  according 
as  the  proceedings  are  in  tlie  King's 
Bench  or  in  the  Common  Pleas,  be- 
cause the  record  is  stated  to  remain 
before  us  (the  king)  if  in  the  former, 
and  before  you  (the  judges)  if  in  the 
latter,  and  is  not  removed  to  another 
court.     In  this  proceeding  it  is  neces- 
sary, of  course,  to  suggest  a  new  fact 
upon  the  record  from  which  the  error 
in   the    first   judgment   will    appear; 


thus  supposing  the   defendant,  being 
an  infant,  has  appeared  by  attorney 
instead  of  guardian,  it  will  be  neces- 
sary to   suggest   this   fact,  of   which 
the  court  was  not  before  informed." 
In    the   note    to   Jaques    v.    Cesar,   2 
Saund.  100  (1G71),  the  early  English 
cases   are   cited,  showing   the    scope, 
character,  and  effect  of  the  writ.     The 
common  law  doctrine  is  also  discussed 
in   Bac.  Abr.  tit.  "  Error  "  ;   Com.  Dig. 
tit.  "Proceedings  in  Error,"  2  Tidd. 
Pr.  1136;  7   Rob.  Pr.  149;  Steph.  PI. 
118.     It  is  recognized  in  many  of  the 
states    of    the  Union    as    forming  a 
part  of  the  law  of  the  land.     See  Hol- 
ford  V.  Alexander,  12  Ala.  280  (1847)  ; 
Adler  v.  State,  35  Ark.  517   (1880); 
McKinnoy   v.   Western    Stage    Co.   4 
Iowa,  420  (1857)  ;   Meredith   v.   San- 
ders, 2  Bibb.  (Ky.)  101  (1810)  ;  Duff 
V.  Combs,  8  B.  Mon.  (Ky.)  386  (1848)  ; 
Combs  V.  Carter,  1    Dana  (Ky.)   178 
(18.33);   Kemp   v.  Cook,  18   Md.   130 
(1861)  ;  Hawkins  v.  Bowie,  9  Gill.  &  J. 
(Md.)  428  (18.38);  Teller  v.  Wetherell, 
6  Mich.  46  (1858)  ;  Land  v.  Williams, 
20  Miss.  (12  Smed.  &  M.)  362  (1849)  ; 
Keller  r.  Scott,  10  Miss.  (2  Smed.  & 
M.)   82    (1844);    Powell    v.    Gott,    13 
Mo.  458  (1850);  ex  parte  Toney,  11 
Mo.  662  (1848);  Calloway  v.  A'ifong, 
1   Mo.  223   (1822);    Higbie    v.   Corn- 
stock,   1    Den.   (N.   Y.)   652   (1845); 
:Malier  v.  Comstock,  1  How.  (N.  Y.) 
Pr.    175    (1845);    Smith   v.   Kingsley, 
19  Wen<l.  (N.  Y.)  62  (1838)  ;  Rough- 
ton  v.  Brown,  8  Jones  (X.  C.)  L.  393 
(1861)  ;  Dows  V.  Harper,  6  Ohio,  518 
(1834)  ;  Wood  v.  Col  well,  34  Pa.  St. 
92    (1859);    Patterson    v.    Arnold,    4 
Col.lw.  (Tenn.)  364  (1867)  ;  Hillman 
r.    Ciioster,    12    Heisk.     (Tenn.)    34 
(1873)  ;  Wynne  v.  Governor,  1  Yerg. 
149  (1829)  ;  Crawford  v.  Williams,  1 


2  115  Ind.  554  (1888)  ;  s.c.  18  X.  E.  Rep.  42. 


356 


HOMICIDE. 


[chap.  XV. 


affidavits,  stating  tliat  he  was  without  means  to  employ  coun- 
sel, and  that  the  sheriff  had  told  him  that  the  prosecuting 
attorney  would  accept  a  sentence  of  two  years  if  defendant 
would  plead  guilty ;  that  the  sheriff  had  advised  him  to  do 
so ;  that  he  was  ignorant  of  the  law,  and  was  arraigned  with- 
out the  privilege  of  consulting  counsel,  and  that  he  was 
innocent  and  liad  always  protested  his  innocence.  On  appeal 
it  Avas  held  that  the  judgment  should  be  set  aside  and  a 
plea  of  not  guilty  entered.     In  Stei:)hens  v.  State  ^  an  applica- 


Swan  (Tenn.)  341  (1851);  Giddings 
V.  Steele,  28  Tex.  755  (1806)  ;  Moke 
V.  Brackett,  28  Tex.  446  (180(5); 
Mills  V.  Alexander,  21  Tex.  154  (1858) ; 
Raid  V.  Strider,  7  Gratt.  (Va.)  82 
(1850).  It  is  declared  to  be  a  judicial 
procedure  of  the  courts  of  the  United 
States.  Pickett  i\  Legerwood,  32 
U.  S.  (7  Pet.)  144  (1833)  ;  bk.  8  L. 
ed.  638 ;  Strode  v.  Stafford  Justices, 
1  Brock.  C.  C.  162  (1810);  United 
States  r.  Plumer,  3  Cliff.  C.  C.  1 
(1859).  In  Pickett  v.  Legerwood,  32 
U.  S.  (7  Pet.)  144  (1833);  bk.  8  L. 
ed.  638,  the  court  saj :  "  The  cases 
for  error  coram  nobis  are  enumerated 
without  any  material  variation  in  all 
books  of  practice,  and  rest  on  the 
authority  of  the  fathers  and  sages  of 
the  law."  Our  best  writers  agree  in 
holding  that  the  remedy  exists  unless 
superseded  or  abolished  by  statute. 
Pow.  App.  Pro.  107  ;  Curt.  Com.  178 ; 
Freem.  Judgin.  94.  Mr.  Freeman 
says:  "The  writ  of  error  coram  }}obis 
is  not  intended  to  authorize  any  court 
to  revise  and  review  its  opinions,  but 
only  to  enable  it  to  recall  some  adju- 
dication, made  while  some  fact  existed, 
which,  if  before  the  court,  would  have 
preventeil  the  rendition  of  the  judg- 
ment, and  which,  without  any  fault 
or  negligence  of  the  i)arty,  was  not 
presented  to  the  court." 

It  lias  been  suggested  tliat  even  at 
common  law  the  writ  of  error  coram 
nobis  had  fallen  into  disuse  in  criminal 
cases,  and  should  not  bo  regarded  ns 
part  of  the  common  law  procedure. 
All  of  the  cases  which  discuss  tlie 
question   treat  the  rule  as    correctly 


laid  down  in  the  books  of  practice, 
and  they  all  agree  in  declaring  it  ap- 
plicable to  criminal  as  well  as  civil 
cases.  In  the  celebrated  and  bitterly 
contested  case  of  Queen  v.  O'Connell, 
7  Ir.  L.  261  n,  357  (1844),  the  writ 
was  allowed,  and  no  questions  made 
as  to  the  right  of  the  accused  to  de- 
mand it.  The  case  was  taken  by  ap- 
peal to  the  House  of  Lords,  where, 
after  a  stubborn  light,  the  judgment 
of  the  Irish  court  was  reversed ;  but 
no  doubt  was  intimated  of  the  right 
of  O'Connell  and  his  associates  to  sue 
out  the  writ.  Sec  O'Connell  r.  Queen, 
11  CI.  &  F.  155,  252  (1844).  In 
United  States  v.  Plumer,  3  Cliif.  C.  C. 
1,  51  (1859),  Judge  Clifford  examined 
the  authorities  with  care,  and  held 
that  the  writ  would  lie  in  criminal  as 
well  as  civil  cases.  It  is  true  that  the 
writ  was  denied  in  that  case ;  not, 
however,  because  it  was  not  a  proper 
procedure  in  a  court  of  competent 
jurisdiction,  but  because  the  court  to 
which  the  application  was  made  had  no 
jurisdiction  at  all  in  criminal  cases. 
In  Adler  v.  State,  35  Ark.  517  (1880), 
the  writ  was  held  to  lie.  The  court 
say  in  that  case  that  the  proceeding 
is  appropriate  in  criminal  as  well  as 
civil  cases,  adding,  "  It  is  settled  that 
for  an  error  in  fact  in  the  proceedings 
of  a  court  of  record,  a  writ  of  error 
coram  nobis  will  lie  to  revoke  the  judg- 
ment, whether  it  be  a  court  of  civil 
or  criminal  jurisdiction."  2  Tidd  Pr. 
1191,  1192. 

'  71  Mo.  535  (1880)  ;  s.c.  11  Cent. 
L.  J.  5. 


SEC.  319.]  ARRAIGNMENT   AND   PLEA.  357 

tion  to  withdraw  a  plea  of  guilty  was  refused  by  the  trial  court, 
where  it  appeared  that  the  defendant  had  entered  the  plea 
of  guilt}^  under  the  belief  that  by  so  doing  a  punishment  less 
severe  than  the  maximum  would  be  inflicted.  This  was  held 
error  on  appeal.  The  court  say :  "  Viewing  the  matter,  then, 
in  either  light,  we  feel  constrained  to  say  that  it  would  better 
have  comported  with  the  proper  exercise  of  a  sound  judicial 
discretion,  had  the  special  judge  permitted  the  withdrawal  of 
the  plea  of  guilty,  and  the  entry,  in  its  stead,  of  the  usual 
plea.  .  .  .  Courts  have  always  been  accustomed  to  exercise  a 
great  degree  of  care  in  receiving  pleas  of  guilty  in  prosecutions 
for  felonies,  to  see  that  the  prisoner  has  not  made  his  plea  by 
being  misled,  or  under  misapprehension  or  the  like.*'  De- 
fendants often  imagine  that  by  pleading  guilty  they  are  likely 
to  receive  some  favor  from  the  court  in  the  sentence  that 
will  be  passed  upon  them ;  for  this  reason  judges  should  be 
very  careful  to  see  that  they  fully  understand  that  their  plead- 
ing guilty  will  make  no  alteration  whatever  in  their  punish- 
ment before  such  a  plea  is  accepted.^ 

Sec.  317.  Same  —  Statutory  provisions.  —  In  some  of  the 
states  statutes  have  been  passed  in  which  it  is  expi-essly  pro- 
vided that  pleas  of  guilty  may  be  withdrawn  and  other  pleas 
substituted  therefor ;  but  such  statutes  generally  provide  that 
motions  for  such  relief  must  be  entered  before  judgment.^ 

Sec.  318.  Same  —  Hearing  of  evidence.  —  In  an  applica- 
tion for  permission  to  withdraw  a  plea  of  not  guilty  the  court 
may  hear  evidence  on  the  part  of  the  state  contradicting  the 
facts  set  forth  in  the  defendant's  affidavit.^ 

Sec.  319.    Pleading-     not     guilty  —  Duty    of     court. — 

Where  a  defendant  pleads  not  guilty,  it  is  the  duty  of  the 
court  to   proceed  to  trial  at   the    proper  time.     Where  the 

1  See  2  Archb.  Cr.  Pr.  344;  2  Hale  States   r.  Bayand,  21   Blatchf.  C.  C. 

P.  C.  225.  217  (1888). 

A   motion    to  withdraw  a  pica   of  "See  State  r.  Buck,  69 -Iowa,  382 

guilty  and  to  enter  one  of  not  guilty  (1882)  ;  State  v.  Oehlshlager,  38  Iowa, 

in  its  stead  was  denied    in    People  r.  297  (1874). 

Lennox,  67   Cal.  113  (1885)  ;    s.c.  21  •"  See  Myers  i'.  State,  115  Ind.  554 

Cent.  L.  J.  213;  6  West  Coast  Rep.  (1888)  ;  s.c.  18  N.  E.  Rep.  42;  Con- 

691;    7    Pac.    Rep.    260;    Conovcr  i:  over  r.  State,  86  Ind.  99   (1882);  s.c. 

State,  86  Ind.  99  (1882)  ;  Mastronada  5  Cr.  L.  Mag.  140. 
I'.  State,  60  ]\Iiss.  87   (1882)  ;  United 


358  HOMICIDE.  [chap.  XV. 

defendant  stands  mute  when  arraigned,  a  plea  of  not  guilty 
will  be  entered.^  Although  it  is  sometimes  provided  by  stat- 
ute that  insanity  must  ])e  specially  pleaded,  yet  it  is  generally 
held  that  under  a  plea  of  not  guilty,  a  defendant  may  show 
that  he  was  insane  at  the  time  of  the  alleged  commission  of 
the  offence  charged.^ 

When  a  defendant  pleads  not  guilty  to  an  indictment  for 
murder,  and  after  the  jury  are  sworn  without  .objection, 
requests  leave  to  withdraw  his  plea  of  not  guilty  and  enter  a 
plea  of  insanit}^,  the  court  may  refuse  to  grant  the  leave 
requested,  and  instruct  the  jury  that  they  may  find  the 
defendant  insane  during  the  trial,  and  in  case  of  such  finding 
the  judgment  will  be  delayed  and  execution  stayed.^ 

Sec.  320.  Same  —  Nolo  contendere.  —  A  plea  of  nolo 
contendere  accepted  by  the  court  is,  in  its  effect  upon  the  case, 
equivalent  to  a  plea  of  guilty.'* 

Sec.  321.  Pleading-  guilty  —  Ascertaining  degree  — 
Retraction  of  plea.  —  It  is  competent  for  a  person  indicted 
for  murder  to  plead  guilty  as  indicted ;  and  such  plea  will 
usually  be  accepted  by  the  court,  if  it  appear  that  he  was  sane 
and  uninfluenced  by  any  consideration  of  fear,  or  by  any  per- 
suasion or  hope  of  pardon  prompting  him  to  confess  his  guilt.^ 
Where  such  a  plea  is  entered,  it  is  the  duty  of  the  court  to 
proceed  to  ascertain  the  degree  of  the  defendant's  guilt ;  the 
decision,  in  some  jurisdictions,  to  be  by  the  court,^  and  by 
jury  in  others.^ 

Where  a  plea  of  guilty  has  been  entered,  and  the  prisoner 
sentenced,  he  will  not  be  permitted  to  retract  such  plea. 
Thus  in  the  case  of  People  v.  Lennox  ^  the  defendant,  under 

iSee  Mose  v.  State,  36   Ala.  211  5  Giles  r.  State,  23  Tex.  App.  281, 

(I860).  285  (1887);  s.c.  4  S.  W.  liep.  880; 

■2  People    V.    Olwell,    28    Cal.    450  Sanders    r.  State,   18   Tex.   App.  372 

(1865).  (1885)  ;    Wallace    r.    State,    10   Tex. 

3  Taylor    v.    Commonwealth,    109  App.  407   (1881)  ;  Saunders  i'.  State, 

Pa.  St.  262  (1885).  10  Tex.  App.  330  (1881). 

*  Commonwealth    r.  In^rersoll,  145  «  See  People  c.  Noll,  20  Cal.   164 

Mass.  231   (1887) ;  s.c.  13  N.  E.  Rep.  (1862)  ;   McCauley  v.  United   States, 

613;     Commonwealth    v.    Tilton,    40  1  Mnrr.  (Iowa)  486  (1846). 
Mass.    (8    Mete.)    232   (1844)  ;    Com-  "  Sanders   r.  State,   18   Tex.   App. 

monwealth    v.    Horton,   20    Mass.    (0  372  (1885). 

Pick.)  200   (1820)  ;  United   States   v.  »  67  Cal.  113    (1885)  ;    s.c.  6   Am. 

Ilartwell,  3  Cliff.  C.  C.  232  (1869).  Cr.  Hep.  542  ;  7  Pac.  Rep.  200. 


SEC.  322.]  ARRAIGNMENT  AND   PLEA.  359 

proper  advice,  pleaded  guilty  to  an  indictment  for  murder. 
The  court  heard  evidence,  determined  the  crime  to  he  murder 
in  the  first  degree,  and  fixed  the  punishment  at  death. 
Immediately,  and  before  the  entry  of  judgment,  the  defendant 
sought  to  withdraw  his  plea ;  but  this  was  not  permitted,  and 
on  appeal  it  was  held  that  such  withdrawal  could  not  be 
permitted.  In  an  early  Illinois  case  ^  a  person  Avas  indicted, 
tried,  and  convicted  of  the  crime  of  murder,  but  the  judg- 
ment was  reversed  on  error.  Subsequently,  and  after  the 
cause  was  remanded,  a  new  indictment  was  preferred  against 
him  for  manslaughter.  After  his  conviction  of  the  crime  of 
murder,  and  prior  to  the  finding  of  the  indictment  for  man- 
slaughter, tlie  law  fixing  the  punishment  for  this  latter  offence 
was  changed.  The  indictment  alleged  the  act  of  killing  to 
have  been  committed  on  a  day  which  was  subsequent  to  the 
passage  of  the  law,  though  in  fact  committed  during  the 
existence  of  another  and  different  law  in  relation  to  the  same 
offence.  The  defendant  pleaded  guilty  to  the  second  in- 
dictment, and  was  sentenced  to  seven  years'  confinement  m 
the  penitentiary  under  the  provisions  of  the  new  law ;  on 
motion  for  a  habeas  corpus  it  was  held  that  the  plea  was  the 
result  of  a  fair  contract,  and  that  the  motion  must  be  denied. 

Sec.  322.  Pleading-  former  jeopardy.  —  As  in  other  of- 
fences, where  a  person  has  once  gone  through  the  legal  form  of 
a  trial  for  any  grade  of  homicide,  he  cannot  be  tried  a  second 
time  for  the  offence  charged.^  And  where  a  person  is  con- 
victed of  a  lower  degree  of  the  offence  than  is  charged,  it 
operates  as  an  acquittal  of  all  higher  degrees.     Thus  a  con- 

1  Sellers  v.  People,  0  111.  183  (1844).  31  La.  An.  847  (1870)  ;   State  v.  Byrd, 

2  See  Gunier  v.  State,  83  Ala.  96  31  La.  An.  419  (1879)  ;  Hurt  i".  State, 
(1887)  ;  s.c.  10  Cr.  L.  Mag.  428  ;  3  25  Miss.  378  (1853)  ;  State  v.  Ander- 
So.  Kep.  000;  Jordan  v.  State,  81  Ala.  son,  89  Mo,  312  (1886)  ;  s.c.  8  Cr.  L. 
20  (1886);  Sylvester  v.  State,  72  Mag.  519;  1  S.  W.  Rep.  135 ;  State  r. 
Ala.  201  (1882)  ;  Johmon  v.  State,  29  Simms,  71  Mo.  538  (1880)  ;  State  v. 
Ark.  31  (1874)  ;  s.c.  2  Am.  Rep.  154;  Smith,  53  Mo.  139  (1873);  State 
People  f.Lockwood,  6  Cal.  205  (1856);  r.  Kring,  11  Mo.  App.  92  (1883); 
Small  V.  State,  63  Ga.  386  (1879)  ;  State  v.  Ray,  1  Rice  (S.  C.)  L.  1 
Brennan  v.  People,  15  111.  511  (1854)  ;  (1838)  :  Smith  ?•.  State.  22  Te.\.  App. 
Ciem  V.  State,  42  Ind.  420  (1874)  ;  s.c.  316  (1886)  ;  s.c.  3  S.  W.  Rep.  684  ; 
13  Am.  Rep.  369  ;  2  Gr.  Cr.  Rep.  687  ;  Cheek  i'.  State,  4  Tex.  App.  444 
Wright  r.  State,  5  Ind.  527  (1854)  ;  (1879)  ;  State  v.  Belden,  33  Wis.  120 
Conner   v.  Commonwealth,    13    Bush  (1873). 

(Ky.)  714  (1878)  ;  State  v.  Dennison, 


30 0  HOMICIDE.  [chap.  XV. 

viction  of  murder  in  the  second  degree  operates  as  an  acquit- 
tal of  the  higher  grade,  even  though  the  indictment  charges 
murder  in  the  first  degree  ;  and  if  the  conviction  is  set  aside 
and  a  new  trial  is  granted,  the  defendant  cannot  be  convicted 
of  a  higher  crime  than  murder  in  the  second  degree.^  But 
such  former  acquittal  must  be  speciall}^  j^leaded  on  the  subse- 
quent trial.^  And  a  conviction  of  manslaughter  operates  as 
an  acquittal  of  all  higher  grades  of  homicide.^  Thus  a  con- 
viction for  killing  by  wilfully  striking,  rendered  on  an  indict- 
ment for  murder,  has  been  held  equivalent  to  an  acquittal  of 
the  crime  of  murder  and  of  all  subsidiary  crimes  included.* 
But  a  conviction  for  assault  and  battery,  not  being  included 
in  any  degree  of  felonious  homicide,  is  not  proper  under  an 
indictment  for  murder,  and  will  not  bar  a  subsequent  prose- 
cution for  that  offence.  Thus  in  Wright  v.  State  ^  the  appel- 
lant was  tried  on  an  indictment  for  murder,  and  the  jury 
found  him  guilty  of  an  assault  and  battery.  The  court  held 
that,  as  assault  and  battery  is  not  included  in  any  of  the 
degrees  of  felonious  homicide,  but  is  merged  in  the  felony 
in  a  case  of  felonious  homicide,  that  the  verdict  was  a  nullity, 
that  the  defect  could  be  reached  by  a  motion  in  arrest  of 
judgment,  and  that  the  indictment  still  stood  against  the 
prisoner,  and  that  he  must  again  be  put  on  trial. 

Where  two  or  more  persons  are  killed  by  the  same  act,  a 
conviction  on  an  indictment  for  the  killing  of  one  is  a  good 
plea  in  bar  to  an  indictment  for  killing  the  other.*^ 

The  discharge  of  a  jury  without  legal  necessity,  and  with- 
out consent,  before   the    rendition  of  the  verdict,  will  also 


1  Jordan  r.  State, 81  Ala.  20  (1886)  ;  tion  in  such  a  case  may  be  had   for 

Sylvester  r.  .State,  72  Ala.  201  ( 1882)  ;  murder  in  the  first  dei>ree. 

Johnson  v.  State,  29  Ark.  31   (1874);  2  Jordan  !•.  State,  81  Ala.  20  (188(5). 

s.c.  21  Am.  Hep.  154  ;  Smith  r.  State,  Compare  Johnson    r.    State,   21)  Ark, 

22  Tex.  App.  31(5  (1886)  ;  s.c.  3  S.  W.  31  (1874)  ;  s.c.  21  Am.  Rep.  154. 

Rep.  684  ;  Cheek  c.  State,  4  Tex.  App.  ^  State    r.    Dennison,    31    La.    An. 

444  (1879).     Compare  State  v.  Ander-  847  (1879)  ;  State  v.  Byrd,  31  La.  An. 

son,  89  Mo.  312  (1886)  ;  s.c.  8  Cr.  L.  419  (1879). 

Mag.  519 ;  1    S.  W.   Rep.  135;    State  •*  Conner    v.     Commonwealth,     13 

V.  Simms,  71    Mo.  538  (1880)  ;    State  Bush  (Ky.)  714  (1878). 

V.  Smith,  53  Mo.  1.39  (1873)  ;  State  r.  5  5  inj.  507  (1854). 

KrinfT,  11  Mo.  App.  92  (1883)  ;  which  c  cicm  v.  State,  42  Ind.  420  (1874)  ; 

hold  that,  under  the  Missouri  consti-  s.c.  13  Am.  Rep.  369;  2  Gr.  Cr.  Rep. 

tution  of  1875,  art.  2,  §  23,  a  convic-  687. 


SEC.  323.]  ARRAIGNMENT   AND   PLEA.  361 

operate  as  a  bar  to  a  subsequent  prosecution  ;  ^  but  lack  of 
jurisdiction,  where  made  ground  for  an  arrest  of  judgment  on 
the  defendant's  motion,  will  not  bar  a  subsequent  trial.- 

Sec.  323.    Same  —  AVIiat    is    a    sufficient    plea    of. — In 

Clem  V.  State,^  to  an  indictment  for  murder  in  the  fii\st  dco-ree 
for  the  killing  of  A,  the  defendant  entered  a  special  pica  in 
bar,  that  she  had  been  indicted  for  murder  in  the  first  degree 
for  killing  one  B  ;  that  she  had  been  tried  by  a  jury  upon 
said  indictment  on  a  plea  of  not  guilty,  and  that  upon  such 
trial  she  was  found  guilty  of  murder  in  the  second  degree, 
and  sent  to  the  state  prison  for  life  ;  by  which  finding  and 
judgment  she  was  acquitted  of  the  charge  of  murder  in  the 
first  degree  as  charged  in  said  indictment;  and  the  crime 
charged  in  said  indictment,  for  which  she  was  tried  and 
acquitted,  "-was  and  is  identical  in  all  its  parts,  incidents, 
and  circumstances,  with  the  crime  charged  in  the  indictment 
for  the  killing  of  '  A ' ;  that  the  evidence  whereby  alone  the 
state  will  attempt  to  prove  the  indictment  in  this  cause  is  the 
same  and  nowise  different  from  that  employed  and  produced 
upon  the  trial  of  the  indictment  on  which  she  was  acquitted 
of  murder  in  the  first  degree  ;  and  this  she  is  ready  to  verify," 
»Scc.     This  was  held  to  be  a  good  plea. 

1  Gunter  v.  State,  SO  Ala.  90  (1888)  ;  -  Small  v.  State,  63  Ga.  386  (1879). 

s.c.  10  Cr.  L.  Mag.  428 ;    3   So.  Rep.  »  42  Ind.  420   (1874)  ;  s.c.  13  Am. 

600.  Rep.  369 ;  2  Gr.  Cr.  Rep.  687. 


CHAPTER   XVI. 

SERVICE   OF   INDICTilENT. 

Sec.  324.  Right  to. 

Sec.  325.  Incorrect  copy. 

Skc.  326.  Time  of  service. 

Sec.  327.  Waiver  of  service. 


Sec.  324.  Right  to.  —  It  is  often  provided  by  statute  that  a 
person  indicted  for  felony,  punishable  capitally  or  otherwise, 
shall  be  entitled  to  have  served  upon  him  a  copy  of  the  in- 
dictment, either  before  arraignment  or  at  the  trial.^  The 
right  to  a  copy  of  the  indictment  in  all  cases  of  homicide  is 
secured  by  statute  in  most  of  the  states  ;  "^  and  where  such  a 
statute  exists  it  is  error  to  force  the  accused  to  proceed  to 
trial  without  furnishing  him  with  such  a  copy.^ 

In  the  federal  courts  a  person  indicted  for  a  felony  not 
capital  is  not  entitled  to  a  copy  of  the  indictment  at  the 


1  Minich  V.  People,  8  Colo.  440 
(1885)  ;  s.c.  5  Am.  Cr.  Rep.  20.  See 
Scott  V.  State,  37  Ala.  117  (1861)  ; 
McCoy  V.  State,  46  Ark.  141  (1885)  ; 
Touts  V.  State,  8  Ohio  St.  98  (1857)  ; 
State  r.  Winningham,  10  Rich.  (S.  C.) 
L.  257  (1857);  Johnson  r.  State,  4 
Tex.  App.  268  (1879). 

If  a  copy  of  the  indictniont,  as 
originally  found  by  the  grand  jury,  is 
served  upon  the  prisoner  while  in  con- 
finement, the  validity  of  the  service 
is  not  affected  by  the  fact  that  a  nolle 
prosequi  liad  been  entered  as  to  one  of 
the  counts.  Scott  v.  State,  37  Ala. 
117  (1861). 

In  the  case  of  State  v.  Winning- 
ham,  10  Rich.  (S.  C.)  L.  257  (1857), 
it  is  said  that  uniler  tlie  South  Caro- 
lina statute  (Act  1731,  §  43)  a  pris- 
oner, indicted  for  a  capital  offence,  is 
entitled,  if  he  requires  it,  and  upon 
payment  of  the  fees  for  copying  it, 
302 


to  a  copy  of  the  indictment,  three 
days  before  he  is  tried.  The  demand 
for  a  copy  should  be  made,  at  the 
latest,  when  he  is  arraigned,  and  in 
open  court.  The  three  days  are  to 
include  the  whole  of  the  day  on  which 
the  motion  is  made.  See  State  v. 
Briggs,  1  Brev.  (S.  C.)  L.  8  (1794). 

2  Dawson  v.  State,  29  Ark.  116 
(1874);  Gnatt's  Dig.  Ark.  Sec.  1825; 
Friar  v.  State,  4  Miss.  (3  How.)  422 
(1839)  ;  IVIoses  v.  State,  9  Baxt. 
(Tenn.)  229  (1877). 

3  Bain  ;•.  State,  70  Ala.  4  (1881)  ; 
Nutt  V.  State,  63  Ala.  180  (1879); 
Driskill  v.  State,  45  Ala.  21  (1871)  ; 
McKinncy  v.  People,  7  111.  (2  Gilm.) 
540  (1845)  ;  s.c.  43  Am.  Dec.  65; 
Moses  V.  State,  9  Baxt.  (Tenn.)  229 
(1877)  ;  Nokes  r.  State,  6  Coldw. 
(Tenn.)  297  (1869)  ;  United  States  v. 
Bickford,  4  Blatchf.  C.  C.  337  (1859). 


SEC.  326.] 


SERVICE    OF    INDICTMENT. 


363 


expense  of  the  government,!  the  statutory  requirements  for 
a  copy  of  the  indictment  and  a  list  of  the  witnesses  being 
confined  to  prosecutions  for  treason. ^ 

Sec.  325.  incorrect  copy.  —  The  service  of  an  incorrect 
copy  is  not  sufficient,  and  it  has  been  hekl  to  be  error  to  rule 
the  defendant  to  trial  on  the  service  of  such  a  paper.^  On 
the  other  hand,  it  has  been  held  that  mere  clerical  error  in  the 
middle  initial  of  the  defendant's  name  in  the  copy  of  the  indict- 
ment served  is  not  so  prejudicial  to  the  prisoner's  interest  as 
to  be  ground  for  a  continuance.*  But  the  omission  to  serve  a 
copy,  or  its  untimely  service,  or  the  service  of  an  incorrect 
copy,  will  be  waived  by  pleading  to  the  indictment  without 
making  a  demand,^  or  taking  exceptions  to  the  absence  of 
such  service,  or  its  insufficiency  ;  °  also  by  going  to  trial  with- 
out objection.' 

Sec.  326.  Time  of  service.  —  When  the  statute  requires 
a  copy  of  the  indictment  to  be  served  before  trial,  the  words 
"  before  trial "  refer  to  the  trial  before  the  jury  and  not  to 
any  preliminary  arraignment.^ 


1  United  States  r.  Biokford,  4 
Blatchf.  C.  C.  3:57  (1859). 

2  United  States  v.  Wood,  3  "Wash. 
C.  C.  440  (1818).  See  United  States 
V.  Williams,  1  Cr.  C.  C.  178  (1804). 

3  Thus  in  Nutt  v.  State,  63  Ala. 
180  (1879),  the  defendant  was  indicted 
for  the  murder  of  Luke  Hodnett,  and 
a  copy  of  the  indictment  served  upon 
him  described  tlie  person  slain  as  Luke 
Hadnett,  and  the  conviction  was  re- 
Tersed. 

4  Fortenberry  v.  State,  55  Miss.  403 
(1877). 

5  See  Wade  v.  State,  50  Ala.  164 
(1874)  ;  Ben  v.  State,  22  Ala.  9  (1853); 
s.c.  58  Am.  Dec.  234;  Jolinson  r. 
State,  43  Ark.  391  (1884);  Minich  i: 
State,  8  Colo.  440  (1885)  ;  s.c.  9  Pac. 
Rep.  4;  McCall  v.  United  States,  1 
Dak.  320  (1876)  ;  Loper  v.  State,  4 
Miss.  (3  How.)  429  (1839)  ;  State  r. 
Johnson,  1  Miss.  (Walk.)  .393  (1831); 
Record  r.  State,  36  Tex.  521  (1871)  ; 
LTnited  States  v.  Curtis,  4  Mas.  C.  C. 
232  (1826)  ;  United  States  v.  Cornell, 
2Mas.  C.  C.  91  (1820). 


6  Logan  V.  State,  50  Miss.  269 
(1874)  ;  State  v.  Waters,  1  Mo.  App. 
7  (1877)  ;  Taylor  v.  State,  11  Lea 
(Tenn.)  709  (1883);  Peterson  i-.  State, 
45  Wis.  535  (1878). 

"  Clarke  v.  State,  78  Ala.  474 
(1885) ;  s.c.  8  Cr.  L.  Mag.  19  ;  Miller 
r.  State,  45  Ala.  24  (1871)  ;  Wright  v. 
State,  42  Ark.  94  (1883)  ;  State  v. 
Russell,  .33  La.  An.  135  (1881)  ;  State 
v.  Jackson,  12  La.  An.  679  (1856)  ; 
Lord  V.  State,  18  N.  H.  173  (1846) ; 
Fonts  V.  State,  8  Ohio  St.  08  (1857)  ; 
Taylor  v.  State,  11  Lea  (Tenn.)  108 
(1883).  Compare  Robertson  v.  State, 
43  Ala.  .325  (1869). 

8  United  States  v.  Neverson,  1 
Mackey  (D.  C.)  152  (1880)  ;  United 
States  V.  Curtis,  4  Mas.  C.  C.  232 
(1826).  As  to  the  time  of  service  of 
copy  in  an  indictment  and  to  the 
method  of  computation  of  time,  see 
Bain  v.  State,  70  Ala.  4  (1881); 
Rogers  i-.  State,  50  Ala.  102  (1874)  ; 
State  V.  McLendon,  1  Stew.  (Ala.) 
19;j  (1827)  ;  State  v.  Kane,  32  La.  An. 
999  (1880)  ;  State  i-.  Toby,  31  La.  An. 


364  HOMICIDE.  [chap.  XVI. 

Skc.  327.  Waiver  of  service.  —  Where  the  statute  requires 
that  a  copy  of  the  indictment  be  furnished  before  arraignment, 
a  failure  to  furnish  such  copy  will  not  be  ground  for  arrest 
of  judgment;  it  is  simply  ground  for  a  new  trial,  and  is 
waived  by  pleading  and  going  to  trial  without  a  copy,i  be- 
cause if  the  defendant  does  not  so  receive  a  copy  of  the  indict- 
ment he  must  object  to  the  omission  before  trial,  and  if  he 
goes  to  trial  without  objecting  it  is  a  waiver  of  his  privilege, 
and  he  cannot  thereafter  move  in  arrest  of  judgment  because 
of  such  omission.2  Thus  it  was  held  by  the  supreme  court 
of  Ohio,  in  tlie  case  of  Fonts  v.  State,^  that  where  a  prisoner 
under  indictment  for  murder  wishes  to  avail  himself  of  the 
omission  to  furnish  him  with  a  copy  of  the  indictment  "  at 
least  twelve  hours  before  trial,"  he  must  declare  it,  by  motion, 
before  trial,  or  interpose  it  as  an  objection  to  being  put  on 
trial,  and  show  the  omission  on  record  by  bill  of  exceptions.* 

Where  the  statute  requires  the  indictment  to  be  served 
upon  the  accused  before  arraignment,  the  prisoner  may  waive 
the  reading  thereof,-'*  for  the  very  sufficient  reason  that  the 
only  object  of  reading  the  indictment  on  arraignment  is  to 
inform  the  accused  of  the  charge  he  is  to  meet,  and  the  statu- 
tory requirement  of  furnishing  the  prisoner  with  a  copy  of 
the  indictment  is  a  better  means  of  information  to  him  of  the 
charge  than  the  reading  of  the  indictment  to  him.*^ 

756  (1879);  State  y.  Briggs,  1  Brev.  der,  the  word  "name"  in  the  formal  in- 

(S.  C.)  L.  8  (1794);  Speer  v.  State,  troductory  clause  was  written  "  same," 

2    Tex.    App.    246     (1878)  ;    United  has  been  held  to  be  frivolous  and  the 

States  V.  Neverson,  1  Mackey  (I).  C.)  copy  to  be  "correct,"  within  tlie  re- 

152   (1880)  ;  United  States  v.  Courtis,  quirement  of  Paschal's  Tex.  Dig.  art. 

4  Mas.  C.  C.  232  (1826).  29:39;  in  Johnson  v.  State,  4  Tex.  App. 

1  McCoy    V.    State,    46    Ark.    140  268  (1879). 

(1885)  ;    Johnson    v.    State,   4-3    Ark.  5  See  Minich  r.  People,  8  Colo.  440 

391   (1884);   Fouts    v.  State,    8    Ohio  (1885);  s.c.  5  Am.  Cr.  Rep.  20;  Fitz- 

St.  98  (1857).  Patrick  r.  People,  98  111.  259  (1881)  ; 

'■^  McCoy    V.    State,    46    Ark.    141  Goodwin   v.  State,   16   Ohio    St.   345 

(1885).  (1865). 

3  8  Ohio  St.  98  (1857).  «  Fitzpatrick  v.  People,  98  111.  250 

*  But    an    objection    that    in    the  (1881).    See  Minich  !».  People,  8  Colo, 

served  copy  of  an  indictment  for  niur-  440  (1885)  ;  s.c.  5  Am.  Cr.  Rep.  20. 


CHAPTER   XVII. 

THE    TRIAL. 

Sec.  328.  Right  to  speedy  trial. 

Sec.  329.  Discharge  on  failure  to  try. 

Sec.  330.  Fixing  time  of  trial  —  Kights  of  defendant. 

Sec.  331.  Postponement  of  trial. 

Sec.  332.  Continuance  to  secure  witness. 

Sec.  333.  Same  —  When  refused. 

Sec.  334.  Continuance  to  secure  counsel. 


Sec.  328.  Right  to  speedy  trial.  —  Wliile  prosecutions 
for  homicides  of  all  grades  are  governed  by  the  same  general 
rules  of  practice  as  are  all  other  prosecutions  for  felony,  yet, 
in  such  cases  involving  consequences  so  serious  to  the  accused, 
the  court  should  proceed  carefully,  and  with  the  utmost  regard 
for  the  defendant's  rights.  The  accused  has  the  .constitu- 
tional guarantee  ^  of  a  speedy  trial,^  at  such  time  after  the 


1  See  Ala.  Const,  art.  I.  §  7  ;  Ark. 
Const,  art.  11.  §  10  ;  Cal.  Const,  art.  I. 
§  13;  Colo.  Const,  art.  11.  §  16;  Conn. 
Const,  art.  I.  §  9 ;  Del.  Const,  art.  I. 
§  7;  Fla.  Const,  art.  I.  §  10 ;  Ga. 
Const,  art.  I.  §7;  111.  Const,  art.  I. 
§9;  Iowa  Const,  art.  I.  §10;  Kan. 
Const.  §  10  of  the  Bill  of  Kights  ;  Ky. 
Const,  art.  13,  §  12;  La.  Const,  tit.  1, 
art.  VI. ;  Me.  Const,  art.  I.  §  0 ;  Md. 
Const,  art.  XXI.  of  the  Declaration  of 
Rights;  Mich.  Const,  art.  I.  §  10; 
Minn.  Const,  art.  I.  §  6 ;  Miss.  Const, 
art.  I..§  7;  Mo.  Const,  art.  L  §  18; 
Neb.  Const,  art.  I.  §  7  ;  N.  J.  Const, 
art.  L  §  8  ;  Ohio  Const,  art.  I.  §  10  ; 
Pa.  Const,  art.  I.  §  9;  R.  L  Const. 
art.  I.  §  10 ;  S.  C.  Const,  art.  I.  §  13  ; 
Tenn.  Const,  art.  I.  §  9;  Tex.  Const. 
art.  I.  §  10;  Vt.  c.  1,  art.  10;  Va. 
Const,  art.  I.  §  10;  Wis.  Const,  art.  L 
§7. 

2  Nixon  r.  State,  10  Miss.  (2  Smed. 


&  M.)  497  (1844)  ;  s.c.  41  Am.  Dec. 
601;  Olive  v.  State,  11  Neb.  1  (1881)  ; 
s.c.  7  N.  W.  Rep.  444. 

This  right  has  been  guaranteed 
from  the  earliest  time.  It  was  se- 
cured first  by  the  Mngna  Charta  and 
the  Petition  of  Rights,  subsequently 
enforced  by  statutes  allowing  a  certain 
time  within  which  the  trial  should  be 
had,  or  on  default  of  this^  in  the  ab- 
sence of  any  sufficient  legal  reason, 
granting  a  discharge  from  custody. 
In  the  American  states  this  same  right 
is  guaranteed,  as  we  have  seen  above, 
in  most  of  the  state  constitutions,  and 
by  the  sixth  amendment  to  the  Fed- 
eral Constitution,  reading  as  follows  : 
"  In  all  criminal  prosecutions  the  ac- 
cused sliall  enjoy  the  right  to  a  speedy 
and  public  trial,  by  an  impartial  jury 
of  the  state  and  district  wherein  the 
crime  shnll  have  been  committed, 
which  district  shall  have  been  previ- 

365 


366  HOMICIDE.  [chap.  XVII. 

finding  of  the  indictment  as  sliall  afford  the  prosecution  time 
and  opi^ortunity,  by  the  fair  and  honest  exercise  of  reasonable 
diligence,  to  prepare  for  trial,  regard  always  being  had  to  the 
terms  of  court.  Should  the  trial  be  delayed  or  post^Doned 
beyond  such  period,  when  there  is  a  term  of  court,  at  which 
the  trial  might  be  had,  by  reason  of  the  neglect  or  laches  of 
the  prosecution  in  preparing  for  trial,  such  delay  is  a  denial 
to  the  defendant  of  his  right  to  a  speedy  trial  ;  and  in  such 
case  a  party  confined,  upon  application  by  habeas  corpus^  is 
entitled  to  a  discharge  from  custody .^ 

The  right  to  a  "  speedy  trial "  means  a  trial  according  to 
fixed  rules,  regulations,  and  proceedings,  free  from  veiiatious 
delays  manufactured  by  the  ministers  of  the  law.^ 

Sec.  329.  I>iscliarg-e  on  failure  to  try.  —  The  right  to 
a  speedy  trial  may  be  enforced  by  a  motion  to  discharge, 
motion  to  dismiss,  or  a  writ  of  habeas  corpus^  in  those  cases 
where  the  delay  is  without  good  and  sufficient  cause,  and  is 
oppressive  ;  but  such  relief  will  not  be  granted  in  those  cases 
where  the  delay  originates  with  the  accused  himself,  or  arises 
from  necessary  regulations  of  procedure,  or  to  give  the  prose- 
cution time  to  prepare  for  trial. '^     Thus  it  has  been  held  that 

ously  ascertained  by  law,  and  to  be  213;  Barron  v.  Baltimore,  32  U.  S. 
informed  of  the  nature  and  cause  of  (7  Pet.)  243  (1833)  ;  bk.  8  L.  ed.  672. 
the  accusation;  to  be  confronted  with  To  the  same  effect  are  the  following 
tlie  witnesses  against  him;  to  have  state  decisions :  Campbell  r.  State,  11 
compulsory  process  for  obtaining  wit-  Ga.  353  (1852)  ;  Guillotte  v.  New 
nesses  in  his  favor,  and  to  liave  the  Orleans,  12  La.  An.  432  (1857)  ;  Jack- 
assistance  of  counsel  for  his  defence."  son  r.  Wood,  2  Cow.  (N.  Y.)  819 
It  has  been  uniformly  held  by  the  (1824)  ;  Murphy  v.  People,  2  Cow, 
supreme  court  of  the  United  States  (N.  Y.)  815  (1826)  ;  In  matter  of 
that  the  prohibition  contained  in  tiiis  Smith,  10  Wend.  (N.  Y.)  449  (1833). 
and  other  amendments  to  the  consti-  ^  United  States  c.  Fox,  3  Mont.  Tr. 
tution  are  exclusively  restrictive  of  512  (1880)  ;  s.c.  2  Cr.  L.  Mag.  329. 
federal  powers  and  does  not  apply  to  -  Stewart  r.  State,  13  Ark.  720 
acts  of  the  legislatures  of  the  various  (1853)  ;  Nixon  v.  State,  10  Miss.  (2 
states.  See  Walker  v.  Sanvinet,  92  Smed.  &  M.)  497  (1844)  ;  s.c.  41  Am. 
U.  S.  (2  Otto)  90   (1875)  ;  bk.  23  L.  Dec.  601. 

ed.  678;  Twitchell  v.  Commonwoaltli,  »  gee  People  v.  Shufelt,  61   Mich. 

74  U.  S.  (7  Wall.)  321  (1868)  ;  bk.  19  237  (1886)  ;    s.c.  28  N.   W.  Rep.  79  ; 

L.  ed.  223 ;    Withers   v.  Buckley,  61  State    i'.    Thompson,    32    Minn.    144 

U.S.   (20    How.)   90   (1857);    bk.  15  (1884);     s.c.    19    N.    W.    Rep.    730; 

L.  ed.  816  ;   Smith  v.  State,  59  U.  S.  Nixcm  v.  State,  10  Miss.  (2   Smed.  & 

(18   How.)   76   (1855)  ;  bk.  15  L.  ed.  M.)  497    (1844) ;    s.c.   41    Am.   Dec. 

269  ;  Fox  v.  State  of  Ohio,  46  U.  S.  601  ;   United  States  v.  Fox,  3  Mont. 

(5  How.)  410  (1847)  ;  bk.  12  L.  ed,  Tr.  512  (1880)  ;    s.c.  2   Cr.  L.  Mag. 


SEC.  330.]  THE   TRIAL.  3GT 

delay  in  trying  a  capital  case  for  two  terms  of  court  after  the 
finding-  of  the  indictment  and  the  commitment  of-  the  ac- 
cused, is  ground  for  his  discharge,  even  though  the  postpone- 
ment of  the  trial  was  unavoidal)le.^  But  it  seems  that  the 
motion  to  discharge  will  be  denied  wlien  the  state  is  ready 
for  trial,  and  there  is  not  time  in  which  to  try  the  cause.^ 
However  in  Green's  Case,^  it  is  said  that  a  person  is  entitled 
to  a  discharge  where  the  cause  has  been  continued  over  five 
terms,  one  on  the  application  of  the  defendant,  and  four 
times  because  of  a  lack  of  time  to  try  it.*  But  to  entitle  a 
defendant  to  a  discharge  because  of  such  delay  in  bringing 
the  cause  to  trial  he  must  demand  a  trial.^  Where  a  due 
demand  for  trial  is  made  and  a  jury  is  impanelled  and  quali- 
fied to  try  the  defendant,  both  at  the  term  at  which  the  de- 
mand is  made,  and  the  term  at  which  liis  discharge  is  moved, 
and  he  is  not  tried,  he  is  entitled  to  an  absolute  discharge  for 
want  of  prosecution,'^  and  such  discharge  has  the  same  effect 
as  a  trial  and  acquittal.^ 

Sec.  330.    Fixing  time  of    trial  —  Rights  of  defendant. 

—  The  right  of  a  speedy  trial  is  not  a  trial  fixed  with  undue 
haste,  and  against  liis  objection,  and  which  works  to  his  preju- 
dice. Especially  is  this  so  where  the  punishment  for  the 
offence  charged  may  involve  the  life  of  the  accused.  He  is 
always  entitled  to  a  reasonable  length  of  time  in  which  to 
prepare  his  defence,  after  his  formal  accusation  by  the  grand 
jury.^     He  is  entitled   to   have  compulsory  process  for  the 

329;     Commonwealth   v.    Propliot,   1  ^  Coiieh  r.  State,  28  Ga.  64  (1859)  ; 

Brown    (Pa.)    135    (1810);    Green   v.  Gallagher  r.  People,  88  111.  335  (1878). 

Commonwealth,    1    Kob.     (Va.)     731  The  demand  may  be  by  words,  or  acts, 

(1842).  or  both.     See  People  v.  Frost,  5  Park. 

1  State  V.  Phil,  1   Stew.   (Ala.)   31  Cr.  Cas.  (N.  Y.)  52  (1838). 

(1827)  ;  People  v.  Giesea,  61  Cal.  53  ^  Dacey  v.  State,  15  Ga.  286  (1854)  ; 

(1882)  ;  Brooks  v.  People,  88  111.  327  Kerese   v.  State,   10   Ga.  95    (1851)  ; 

(1878)  ;  State  v.  Thompson,  32  Minn.  Commonwealth  v.  Prophet,  1  Browne 

144  (1884)  ;  s.c.  19  N.  W.  Pep.  730;  (Pa.)  135  (1810). 

State  V.  Huting,  21  Mo.  464  (1855).  "  Ex  parte   McGehan,  22   Ohio   St. 

2  Robinson    v.    State,    12    Mo.   592  442  (1872)  ;    Kerese   r.  State,  10  Ga. 
(1849)  ;  Erwin  v.  State,  29  Ohio   St.  95  (1851). 

186   (1876)  ;    Ex  parte   McGehan,  22  »  State    v.  Boyd,    37    La.   An.    781 

Ohio  St.  442  (1872).  (1885)  ;  People  v.  Fnller,  2  Park.  Cr. 

3  1  Rob.  (Va.)  731  (1842).  Cas.  (N.  Y.)  16  (1823). 

*  But    see    State    v.   Patterson,    1  A  defendant  in  a  capital  case,  who 

McCord  (S.  C)  177  (1821).  is  guilty  of  no  laches  is  entitled  to  a 


368  HOMICIDE.  [chap.  XVII. 

attendance  of  witnesses  to  testify  in  his  favor,  and,  conse- 
quently, time  reasonably  sufficient  for  obtaining  them ;  ^  but 
this  means  witnesses  to  give  testimony  in  his  defence  to  the 
merits,  and  not  necessarily  witnesses  to  join  with  him  in  an 
affidavit  for  the  purpose  of  obtaining  a  change  of  venue.^ 
But  where  a  continuance  or  adjournment  is  asked  for  on 
the  ground  of  the  absence  of  necessary  witnesses,  the  court 
may  usually  properly  refuse  the  request,  if  the  prosecution 
admits  the  truth  of  the  facts  to  which  the  absent  Avitnesses 
are  expected  to  testify,  as  set  forth  in  the  motion.'^  In  the 
case  of  People  v.  Wilson  *  an  application  for  delay  in  a  trial 
for  murder,  grounded  on  an  affidavit  of  the  absence  of  mate- 
rial witnesses,  it  appeared,  on  the  part  of  the  government, 
and  was  not  disputed  by  the  accused,  that  no  living  person 
save  the  prisoner  was  present  at  the  alleged  murder,  nor  was 
there  claim  of  an  allhi.  The  court  required  the  facts 
expected  to  be  proved  by  the  absent  witnesses  to  be  set 
forth.  It  appeared  that  the  witnesses  were  expected  to 
testify  to  the  defendant's  good  character  before  the  alleged 
murder.  The  government  admitted  this  and  the  motion  was 
denied. 

Sec.  331.  Postponement  of  trial.  —  A  postponement  is 
sometimes  properly  granted  for  the  purpose  of  obtaining  a 
witness  to  contradict  a  witness  whose  testimony  is  unex- 
pected, and  causes  surprise.  In  Hodde  v.  State,^  wdiich  was 
the  trial  of  an  indictment  for  murder,  the  state  produced 
material  testimony  of  a  new  witness  who  had  not  been  called 
at  two  previous  judicial  investigations  of  the  case,  and  re- 
fused to  grant  the  defendant  a  postponement  until  a  contra- 
dieting  witness,  twelve  miles  away,  could  arrive ;  and  this 
was  held  to  be  ground  for  a  new  trial. 

reasonable    time    to    prepare    his    de-  \Y.  Rep.  275;  Bailey  ?■.  State,  26  Tex. 

fence.     Three  hours  is  not  such  time.  App.  706  (1887)  ;    s.c.  9   S.  W.  Hep. 

State  V.  Boyd,  ?,7  La.  An.  781  (1885).  270;  Wall  v.  State,  18  Tex.  App.  682 

1  Wall  V.  State,  18  Tex.  App.  682.  (1885)  ;  Miller  v.  State,  18  Tex.  App. 

2  See  Stapleton  r.  Commonwealth  232  (1885)  :  Hodde  v.  State,  8  Tex. 
(Ky.)     3    S.    W.  Rep.    793    (1887)  ;  App.  382  (1880). 

State  y.  Lewis,  9  Mo.  App.  .321  (1881);  »  i:.eople   v.   Wilson,   3   Park.   Or. 

Skates  v.  State,  64  Miss.  644  (1887)  ;  Cas.  (N.  Y.)  199  (1856). 

People    V.  Wilson,  3   Park.    Cr.    Cas.  *  3   Park.    Cr.    Cas.    (N.   Y.)    199 

(N.  Y.)   199  (1856);  Boyctt  v.  State,  (1856). 

26   Tex.  App.  689  (1886)  ;    s.c.  9   S.  ^  8  Tex.  App.  382  (1880). 


SEC.  331.]  THE   TRIAL,.  369 

In  considering  the  motion,  if  the  postponement  or  continu- 
ance is  asked  for  the  purpose  of  obtaining  absent  witnesses, 
the  court  should  consider  the  materiality  of  their  expected 
testimony  as  it  is  stated  in  the  motion,  and  its  probable  truth :  ^ 
and  if  such  testimony  would  be  plainly  immaterial  or  inad- 
missible, or  would  lack  weight  sufficient  to  benefit  defendant, 
the  motion  may  be  refused.^  Thus  it  has  been  said  that  a 
conviction  for  murder  will  not  be  reversed  for  refusing  a  con- 
tinuance to  procure  witnesses  to  prove  that  another  person, 
shown  not  to  have  been  present  at  the  killing,  and  confessed 
being  guilty  thereof,  there  being  direct  as  well  as  strong  cir- 
cumstantial evidence  that  the  defendant,  and  not  the  other  per- 
son, committed  the  crime,  as  such  confession,  in  view  of  these 
facts,  would  have  been  inadmissible.^  In  Boyett  v.  State  *  it 
is  said  that  the  fact  that  the  defendant  could  prove,  by  wit- 
nesses, absent  without  fault,  the  time  of  night  at  which  the 
homicide  for  which  he  was  indicted  occurred ;  that  he  was 
seen  going  in  the  direction  of  home  shortly  previous  thereto, 
and  not  seen  by  them  again  that  night ;  two  men,  of  whom 
the  defendant  was  not  one,  inquired  for  the  deceased  the  day 
before  he  was  killed,  threatened  him,  and  went  in  the  direc- 
tion of  the  town  where  the  crime  was  committed,  is  ground 
neither  for  a  continuance  nor  a  new  trial,  when  the  inculpa- 
tory evidence  is  so  strong  that  the  evidence  would  have 
probably  made  no  change  in  the  verdict.  And  where  a 
motion  for  a  continuance  of  the  trial  of  an  indictment  for 
murder  was  supported  by  an  affidavit  that  the  defendant  could 
prove  by  an  absent  witness  that  the  deceased  had  threatened  to 
take  the  defendant's  life,  and  the  threats  had  been  communi- 
cated to  him,  it  was  held  that  the  proof  showing  that  the 
defendant  had  no  fear  of  the  deceased,  and  that  the  defend- 
ant's effort  was  to  provoke  him  in  order  that  he  might  shoot 
him,  the  overruling  of  the  motion  would  not  be  disturbed.^ 

1  Miller  v.  State,  18  Tex.  App.  232  ^  Bailey  v.  State,  26  Tex.  App.  706 

(1885).  (1887) ;  s.c.  9  S.  W.  Rep.  270. 

-  Stapleton      v.      Commonwealth,  ••2(5    Tex.    App.   689    (1886);   s.c. 

(Ky.)   3    S.   W.    Rep.    793    (1887);  9  S.  W.  Rep.  275. 

Bailey   v.    State,    26    Tex.    App.    706  ^  Stapleton      v.      Commonwealth, 

(1887) ;  s.c.  9  S.  W.  Rep.  270;  Boyett  (Ky.)  3  S.  W.  Rep.  793  (1887). 
r.   State,  26   Tex.  App.  689   (1886); 
s.c.  9  S.  W.  Rep.  275. 

24 


370  ho:micide.  [chap.  xvri. 

Sec.  332.    Continuance  to    secure    witness.  —  It  may  be 

good  ground  for  a  postponement  or  continuance,  as  the  case 
may  be,  that  the  necessary  witnesses  for  the  defence  have 
not  been  summoned,  and  the  omission  is  not  the  fault  of  de- 
fendant. Thus  it  has  been  said  that  the  judgment  will  be 
reversed  and  a  new  trial  granted  in  a  capital  case,  where  it 
appears  that  the  defendant  confided  in  his  attorney  to  summon 
the  necessary  witnesses  for  his  defence,  but  that  they  were 
not  summoned,  and  that  the  court  nevertheless  ordered  the 
trial'to  proceed,  whereupon  a  conviction  of  murder  in  the  first 
degree  resulted.^ 

Sec.  333.  Same  —  When  refused.  —  There  can  be  no 
benefit  in  granting  a  continuance  where  it  is  improbable  that 
the  absent  witnesses  will  ever  be  present.  In  Skates  v.  State  ^ 
a  continuance  of  a  trial  for  homicide  was  asked  for  on  the 
ground  of  the  absence  from  the  state  of  the  physician  who 
attended  the  deceased,  and  by  whom  it  was  expected  to  prove 
that  the  deceased  died,  not  from  the  effects  of  the  wound  in- 
flicted by  the  defendant,  but  from  pneumonia.  Immediately 
after  the  killing,  more  than  six  years  before  the  trial,  the  de- 
fendant fled  and  remained  away  until  a  short  time  before  the 
trial ;  and  the  physician  in  the  meantime  removed  from  the 
state,  and  had  never  returned,  nor  indicated  any  intention  of 
returning.  The  court  held  that  the  continuance  was  properly 
refused,  there  being  no  reasonable  expectation  that  the  wit- 
ness would  ever  attend  in  court. 

Sec.  334.  Continuance  to  secure  counsel.  —  A  postpone- 
ment because  the  defendant  has  not  been  able  to  obtain  coun- 
sel, or  has  obtained  counsel  so  recently  that  there  has  not 
been  sufficient  time  in  which  to  prepare  the  defence,  is  largely 
within  the  discretion  of  the  trial  court.  Thus  where  the 
accused  on  arraignment  informed  the  judge  that  he  had  re- 
tained counsel,  but  afterwards  asked  a  continuance  because 
liis  counsel  had  abandoned  liis  case,  and  counsel  was  then 
assigned,  who  defended  him  through  the  trial  and  on  appeal, 
it  was  held  that  the  appellate  court  could  not  interfere  with 

1  State  V.  Lewis,  9  Mo.  App.  321  2(54   Miss.  G44   (1887);  s.c   1   So. 

(1881).  Rep.  843. 


SEC.  334.]  THE   TRIAL.  371 

the  discretion  of  the  judge  in  refusing  a  continuance.^  But 
in  the  case  of  State  v.  Brooks,^  which  was  a  prosecution  for 
homicide  charged  to  have  been  committed  only  nine  days 
previously,  the  defendant  asked  a  continuance  on  the  ground 
that  it  was  only  on  the  preceding  day  he  had  been  able  to 
secure  counsel,  who  had  not  had  a  reasonable  time  to  prepare 
the  defence,  it  was  held  that  a  refusal  to  grant  the  continu- 
ance was  error,  for  which  a  conviction  would  be  set  aside. 
The  law  securing  assistance  to  jiersons  accused  of  homicide 
or  other  felony  does  not  extend  to  them  a  barren  right,  for  of 
what  avail  would  the  privilege  of  counsel  be  if,  on  the  spur 
of  the  moment,  without  an  ojjportunity  of  studying  the  case, 
he  should  be  compelled  to  enter  into  the  investigation  of  the 
case?  The  counsel  must  be  allowed  a  reasonable  time  in 
which  to  prepare  for  trial.^ 

In  those  cases  where  the  defendant  has  had  sufficient  time 
to  prepare  his  defence,  it  is  not  generally  error  to  put  him 
upon  his  trial  at  a  special  or  adjourned  term,  properly  ordered 
and  recognized  ;  and  he  cannot  be  heard  to  object  that  such 
term  was  not  ordered  on  his  petition."*  Thus  it  has  been  said, 
by  the  supreme  court  of  Arkansas,  that  where  the  record 
shows  that  a  capital  trial  was  had  at  an  extra  term,  called 
and  held  conformably  to  law,  and  on  the  day  specified  in  the 
order  calling  it,  it  is  of  no  consequence  that  the  order  fix- 
ing the  day  for  trial  was  made  on  the  day  before  the  final 
adjournment  of  the  regular  term,  while  the  order  for  the 
adjourned  term  was  not  made  until  the  next  day ;  nor  is  it 
material  that  an  order  was  not  made  at  the  extra  term  setting 
a  day  for  the  trial.^ 

1  State  V.  Johnson,  36  La.  An.  852  Simpson,  38  La.  An.  24  (1886)  ;  State 

(1884).  i-.  Ferris,  16  La.  An.  424  (1862). 

-  39  La.  An.  239  (1887)  ;  s.c.  1  So.  *  Collier  v.  State,  20  Ark.  36  (1859). 

Kep.  421.  See  Martin  v.  State,  77  Ala.  1  (1884). 

3  State  V.  Brooks,  39  La.  An.  239  5  Martin  v.  State,  77  Ala.  1  (1884). 

(1887);  s.c.  1  So.  Rep.  421;  State  v. 


CHAPTER   XVIII. 

JOINT   DEFENDANTS. 

Seo.  335.  Separate  trial. 

Sec.  336.  Same  —  Discretion  of  trial  judge. 

Sec.  337.  When  demanded. 

Sec.  338.  Determining  order  of  trial. 

Sec.  339.  Waiver  of  separate  trial. 

Sec.  340.  When  put  on  trial. 

Sec.  335.  Separate  trial.  —  In  many  jurisdictions  where 
two  or  more  persons  are  jointly  indicted  for  a  homicide  they 
are  entitled  to  separate  defences  as  a  matter  of  right,^  even 
where  the  object  of  the  severance  is  to  use  the  co-defendant 
first  tried  as  a  witness,  in  case  he  is  acquitted.^  In  other 
jurisdictions  the  granting  of  a  severance  is  a  matter  resting 
in  the  sound  discretion  of  the  trial  court.^  In  Commonwealth 
V.  Hughes  ^  it  is  said  that  the  prosecuting  attorney  may  elect 
to  try  the  defendants  separately. 

Sec.  336.  Same — Discretion  of  trial  judg-e.  —  The  trial 
judge,  in  the  absence  of  statutory  regulation  of  the  subject,^ 

1  People    V.   Alviso,    5-5    Cal.   230  (12  Wlieat.)  480  (1827)  ;  bk.  6  L.  ed. 

(1880);    Studstill    v.    State,   7    Ga.  2  700;  United  States  v.  Gibert,  2  Sunin. 

(1840);  Greer  v.  State,  54  Miss.  378  C.  C.  19  (1834).     See  Keed  v.  State, 

(1877)  ;    State    v.   Knight,    59   Tcnn.  11  Tex.  App.  509  (1882)  ;  s.c.  40  Am. 

418  (1874);   Willey  v.  State,  22  Tex.  Kep.  795;  Anderson  v.  State,  8  Tex. 

App.  408   (1886);   s.c.  3  S.  W.  Kep.  App.  542  (1880). 

570;    Allison    v.  State,  14  Tex.  App.  ^  Stewart    v.    State,    58    Ga.    577 

402(1884);  Myers  i;.  State,  7  Tex.  App.  (1877);    Douglass    v.   State,    72    Ind. 

640(1880);  Ruckery.State,  7  Tex.  App.  385    (1880);     State    v.   Doolittle,   58 

549(1880);  United  States  r.  Sharp,  1  N.    H.    92   (1877);    United    States    r. 

Pet.   C.   C.  118   (1815);    Reg.  v.  Mc-  Marciiant,  25  U.  S.  (12  Wiieat.)  480 

Canohy,  5  Rev.  Leg.  L.  C.  746  (1874).  (1827)  ;  bk.  6  L.  ed.  700;  United  States 

■-  Statu  V.  Conley,  .39  Me.  78  (1854).  r.  Wilson,    Baldw.   C.  C.   78    (1830)  ; 

Referred  to  State  v.  Soper,  16  Me.  293  United  States  ;•.  Davidson,  4  Cr.  C.  C. 

(18.39)  ;  s.c.  33  Am.  Dec.  665;  People  576  (1835)  ;  United  States  v.  Gibert,  2 

V.  Stockham,  1  Park.  Cr.  Cas.  (N.  Y.)  vSumn.  C.  C.  20  (18-34)  ;  United  States 

424    (1853)  ;    State    v.    McLendon,   5  v.  Kelly,  4  Wash.  C.  C.  528  (1825). 

Strobh.   (S.  C.)   L.  85  (1850);  Conn.  *  n  pi,iia.  (l>a.)  430  (1876). 

r.   State,    11    Tex.   App.  390   (1882);  ^  Soo  Lawrence  v.   State,   10   Ind. 

United  States  v.  Marchant,  25  U.  S.  453  (1858). 

372 


SEC.  339.]  JOI^'T   DEFENDANTS.  373 

has  the  discretion  to  grant  ^  or  refuse  a  severance  in  the  trial 
of  defendants  jointly  indicted.^ 

Sec.  337.  AVhen  demanded.  —  A  demand  for  the  separate 
trial  of  joint  defendants  should  be  made  to  the  court  before 
the  formation  of  the  jury  is  begun ;  ^  but  the  trial  court  may, 
in  the  exercise  of  a  sound  discretion,  grant  or  refuse  a  sever- 
ance at  any  time  before  the  jury  is  sworn.*  After  the  jury 
has  been  sworn  and  evidence  taken  it  is  too  late  for  co-defend- 
ants to  elect  to  be  tried  separately.^ 

Sec.  338.  Determining  oi-der  of  trial.  —  Where  co-defend- 
ants are  entitled  as  a  matter  of  right  to  a  severance  in  their 
trial,  they  cannot  determine  the  order  in  which  their  trials 
shall  be  had ;  ^  this  matter  rests  in  the  sound  discretion  of 
the  ministerial  officer  prosecuting,'  subject  to  the  direction 
of  the  trial  court ;  ^  and  the  failure  of  the  court  to  interfere 
Avith  that  discretion  is  not  ground  for  exception ;  ^  hence  the 
principal  in  the  second  degree  may  be  tried  first.^*^ 

Sec.  339.  Waiver  of  separate  trial.  —  Joint  defendants 
may  waive  a  separate  trial,  and  where  they  have  done  so,  it 
is  within  the  discretion  of  the  court  to  grant  a  subsequent 
application  for  a  separate  trial.^i 

1  Commonwealth  i\  James,  00  Mass.  ^  State  v.  McLane,  15  Nev.  345 
438  (1868)  ;  Commonwealth  v.  Hughes,     (188U). 

11  Phila.  (Pa.)  430  (187G) ;  State  v.  *  People    v.   Alviso,    55    Cal.    230 

Yancey,  3  Brev.  (S.  C.)  306  (1813)  ;  (1880). 

8.C.  1  Tread.  (S.  C.)  241.  »  Trowbridge  v.  State,  74  Ga.  431 

2  Thompson    v.   State,   25  Ala.  41  (1885). 

(1854)  ;  People  v.  Alviso,  55  Cal.  230  '^  Allison  r.  State,  14  Tex.  App.  402 

(1880)  ;  Maton  v.  People,  15  111.  530  (1884). 

(1854)  ;  Commonwealth  v.  Thompson,  '  See  Patterson  v.  People,  46  Barb- 

108  Mass.  461  (1871)  ;  Commonwealth  (N.  Y.)  625  (1866)  ;  Shay  v.  Common- 

V.  Robinson,  67  Mass.   (1  Gray)  555  wealth,  36  Pa.  St.  305  (1860)  ;  Keg.  r. 

(1854);  AVall  v.  State,  51   Miss.  .306  Bennett,   10   Cox   C.   C.  331    (1866); 

(1875)  ;  State  v.  Doolittle,  58  N.  H.  Reg.  r.  Bond,  10  Cox  C.  C.  331  (1866). 

92  (1877)  ;  People  r.  Howell,  4  Johns  ^  People  v.  Mclntyre,  1  Park.  Cr. 

(N.  Y.)  296  (1800)  ;  State  v.  McGraw,  Cas.  (N.  Y.)  371  (1852)  ;  aff.  svb.  nom. 

13  Rich.  (S.  C.)  L.  316  (1866)  ;  State  Mclntyre  v.  People,  9  N.  Y.  38  (1853). 

V.  Wise,  7  Rich.  (S.  C.)  L.  412  (1854)  ;  »  Studstill  v.  State,  7  Ga.  2  ( 1849)  ; 

State  V.  Meaker,  54  Vt.  112  (1881)  ;  Patterson  v.  People,  46  Barb.  (N.  Y.) 

.Tones   v.   Commonwealth,   31    Gratt.  625  (1866).     See  Jones  v.  State,  1  Ga. 

(Va.)  830  (1878);  Commonwealth  i'.  610  (1846). 

Lewis,  25    Gratt.   (Va.)   938  (1874);  i-^  Boyd  r.  State,  17  Ga.  194  (1855). 

UnitedStates!'.  Marchant,25  U.S.  (12  "People    v.    Alviso,   55  Cal.   230 

Wheat.)  480  (1827)  ;  bk.  6  L.  ed.  700.  (1880). 


374  HOMICIDE.  [chap.  XVIII. 

Sec.  340.  When  put  ou  trial.  —  It  is  not  necessary,  how- 
ever, that  all  the  proceedings  as  to  one  of  the  defendants  shall 
be  concluded  before  the  other  is  put  upon  his  trial.  Thus 
where  two  were  jointly  indicted  as  principals  in  the  second 
degree  for  murder,  and  the  case  being  called  as  to  one,  his 
counsel  stated  that  there  was  a  plea  of  autrefois  acquit  to  be 
disposed  of,  which  was  done,  and  verdict  rendered  for  the 
state,  it  was  held,  that  the  other  principal  might  be  put  on 
trial,  without  first  concluding  the  proceedings  against  his 
co-defendant.i 

1  Studstill  V.  State,  7  Ga.  2  (1849). 


CHAPTER  XIX. 

THE   TRIAL — PRESENCE   OF   THE   DEFENDANT. 

Sec.  341.  Right  to  be  present. 

Sec.  342.  Same  — Forfeiture  of  right. 

Sec.  343.  Same — Waiver  of  right. 

Sec.  344.  Same  —  Temporary  absence. 

Sec.  345.  Presence  during  delivery  of  testimony. 

Sec.  346.  Attending  on  inspection. 

Sec.  347.  Presence  during  instruction  to  jury. 

Sec.  348.  Presence  when  verdict  received. 

Sec.  349.  Present  on  motion  for  new  trial  and  arrest  of  judgment. 

Sec.  350.  Presence  presumed. 

Sec.  351.  Presence  of  counsel. 

Sec.  341.  Right  to  be  present.  —  Upon  the  trial  of  an 
indictment  for  a  homicide,  as  in  prosecutions  for  other  felo- 
nies, it  is  imperative  that  the  defendant  be  present  in  court 
when  any  material  step  is  taken  in  the  progress  of  the  trial, 
or  of  anything  pertaining  thereto.^     This   right   is   without 

1  See  Sylvester  v.   State,  71  Ala.  31   Mo.   147   (1860)  ;    State  v.  Cross, 

17    (1881);    Slocovitch    v.    State,    46  27  Mo.  332  (1858)  ;  Dodge  r.  People, 

Ala.  227  (1871)  ;  People  v.  Sing  Lum,  4  Neb.  220  (1876)  ;  Territory  v.  Yar- 

61    Cal.   538    (1882);   People   v.   Lee  berry,  2  N.  Mex.  391   (1883);  Maurer 

Fat,  54   Cal.  527    (1880) ;    People  r.  v.  People,  43  N.  Y.  5  (1870) ;  State  v. 

Harrington,  42  Cal.  168   (1871)  ;  s.c.  Alnian,  64  N.  C.  364  (1870)  ;  Fight  v. 

10  Am.  Rep.  296  ;  Territory  v.   Gay,  State,  7  Ohio,  182  (1835) ;  s.c.  28  Am. 

2  Dak.  125  (1879)  ;  s.c.  2  N.  W.  Rep.  Dec.  626;    Crusen   v.   State,   10  Ohio 

477;  Gladden   v.   State,    12   Fla.   562  St.  258    (1859);  State  v.  Carfwright, 

(1869);  AVrt«  V.    Slate,   .55   Ga.    521  10  Oreg.  193  (1881);  Jewell  v.  Com- 

(1875);  s.c.  21  Am.  Rep.  281;  Ep}>s  monwealth,    22    Pa.    St.    94    (1853); 

V.  State,  102  Ind.  5-39  (1885)  ;  s.c.  5  Prine   v.    Commonwealth,   18   Pa.  St. 

Am.  Cr.  Rep.  517;  1  N.  E.  Rep.  491;  103    (1851);    State    v.    Blackwelder, 

State  f.Decklotts,  19  Iowa,  447  (1865);  Phill.    (N.    C.)    38    (1866);  State   v. 

State  V.  Berlin,  24  La.  An.  46  (1872)  ;  David,  14  S.  C.  428  (1880)  ;  Clark  v. 

State  V.  Richards,  21  Minn.  47  (1874);  State,  4  Humph.  (Tenn.)  254  (184.3)  ; 

Simpson  v.  State,  56  Miss.  297  (1879);  Brown  v.  State,  38  Tex.  482   (1873)  ; 

Rolls  1-.  State,  52  Miss.  391    (1876)  ;  Jackson  v.  Commonwealth,  19  Gratt. 

Scaggs  V.  State,  16  Miss.   (8  Smed.  &  (Va.)    664   (1870)  ;    Shapoonmash   v. 

M.)    722    (1847);  State  v.   Dooly,  64  United  States,  1  Wash. Tr.  188  (1862); 

Mo.   146   (1876)  ;   State  v.  Allen,   64  Leschi  r.  Territory,  1  Wash.  Tr.  23 

Mo.  67   (1876)  ;  State  v.  Schoenwald,  (1857)  ;  State   i-.   Greer,   22   W.   Va. 

375 


376 


HOMICIDE. 


[chap.  XIX. 


exception  and  without  limit  except  in  those  matters  regard- 
ing which  the  trial  court  has  a  discretion.  This  privilege  to 
be  present  in  person  and  defend  by  self  or  counsel  is  often 
secured  by  constitutional  provision  and  one  which  the  courts 
cannot  disregard,  but  are  bound  by  the  most  solemn  obliga- 
tion to  support  and  defend.^ 

The  record  must  affirmatively  show  that  the  defendant  Avas 
present  in  court  during  the  whole  time  of  the  trial,  and  when 
the  verdict  was  rendered  and  the  sentence  pronounced,^  or 
the  judgment  of  conviction  will  be  reversed.^  But  the  fact 
of  the  prisoner's  presence  need  not  be  declared  and  repeated 


800  (1883);  Younger  v.  State,  2  W. 
Va.  579  (1868)  ;  Hill  v.  State,  17  Wis. 
675  (1864) ;  2  Hale,  300.  Compare 
People  V.  Bealoba,  17  Cal.  389  (1861). 

'^  Ex  parte  Bryan,  44  Ala.  402 
(1870)  ;  Holton  v.  State,  2  Fla.  501 
(1849). 

2  Sylvester  v.  State,  71  Ala.  17 
(1881) ;  Ex  parte  Bryan,  44  Ala.  402 
(1870)  ;  Graham  v.  State,  40  Ala.  659 
(1867);  Eliza  v.  State,  39  Ala.  693 
(1866)  ;  Sweetlen  v.  State,  19  Ark. 
205  (1857)  ;  Cole  v.  State,  10  Ark. 
318  (1850) ;  Si^eed  v.  State,  5  Ark.  431 
(1843)  ;  s.c.  41  Am.  Dec.  102;  People 
v.Kohler,  5  Cal.  72  (1855);  Gladden 
V.  State,  12  Fla.  577  (1869)  ;  Holton 
V.  State,  2  Fla.  476  (1849)  ;  Steele  v. 
Commonwealth,  3  Dana  (Ky.)  84 
(1835)  ;  State  v.  Smith,  31  La.  An. 
406  (1879)  ;  Simpson  v.  State,  56 
Miss.  297  (1879)  ;  Rolls  v.  State,  52 
Miss.  391  (1876)  ;  Long  v.  State,  52 
Miss.  23  (1876)  ;  State  i'.  Dooly,  64 
Mo.  146  (1876)  ;  State  v.  Allen,  64  Mo. 
67  (1876)  ;  State  v.  Jones,  61  Mo.  233 
(1875)  ;  State  v.  Barnes,  59  Mo.  154 
(1875)  ;  State  v.  Ott,  49  Mo.  326 
(1872)  ;  State  v.  Schoenwald,  31  Mo. 
147  (1860)  ;  State  v.  Cross,  27  Mo. 
332  (1858)  ;  State  v.  Buckner,  25  Mo. 
167  (1857)  ;  State  (•.  Matthews,  20 
Mo.  55  (1854)  ;  Maurer  v.  People,  43 
N.  Y.  1  (1870)  ;  People  v.  Charles,  1 
Edm.  Sel.  Cas.  (N.  Y.)  264  (1846); 
State  V.  Alman,  64  N.  C.  364  (1870)  ; 
State  V.  Langford,  Busb.  (N.  C.)  L. 
436  (1853);  State  i-.  Cartwright,  10 
Ureg.  193  (1881)  ;  Dougherty  v.  Com- 


monwealth, 69  Pa.  St.  286  (1871)  ; 
Prine  ;'.  Commonwealth,  18  Pa.  St. 
103  (1851);  Hamilton  v.  Common- 
wealth, 16  Pa.  St.  129  (1851)  ;  Dunn 
r.  Commonwealth, 6  Pa.  St.  384  (1847); 
Andrews  v.  State,  34  Tenn.  (2  Sneed.) 
550  (1855)  ;  Witt  v.  State,  5  Coldw. 
(Tenn.)  11  (1867)  ;  Lawrence  v.  Com- 
monwealth, 30  Gratt.  (Va.)  845  (1878); 
Jackson  v.  Commonwealth,  19  Gratt. 
(Va.)  656  (1870)  ;  Hooker  v.  Com- 
monwealth, 13  Gratt.  (  Va.)  763  (1855); 
Sperry  v.  Commonwealth,  9  Leigh 
(Va.)  623  (1838)  ;  s.c.  33  Am.  Dec. 
261  ;  Shapoonmash  v.  United  States, 
1  Wash.  Tr.  188,  219  (1862)  ;  Leschi 
r.  Washington  Territory,  1  Wash.  Tr. 
23  (1857);  Younger  v.  State,  2  W. 
Va.  579  (1868)  ;  Hill  v.  State,  17  Wis. 
675  (1864).  Compare  People  v.  Sing 
Lum,  61  Cal.  538  (1882)  ;  Territory 
r.  Yarberry,  2  N.  Mex.  391  (1883), 
where  it  is  held  that  the  defendant's 
presence  will  be  presumed  unless  the 
record  shows  the  contrary.  See  post, 
§  350. 

3  Osborn  v.  State,  24  Ark.  629 
(1867)  ;  Brown  v.  State,  24  Ark.  620 
(1867);  Gladden  v.  State,  12  Fla. 
562  (1869);  Holton  v.  State,  2  Fla. 
500  (1849)  ;  Rutherford  v.  Common- 
wealth, 78  Ky.  639  (1880)  ;  McQuil- 
Icn  V.  State,  16  Miss.  (8  Smed.  &  M.) 
587  (1847);  State  v.  Elkins,  63  Mo. 
159  (1876)  ;  People  v.  Vail,  6  Abb. 
(N.  Y.)  N.  C.  206  (1879)  ;  s.c.  57 
How.  (N.  Y.)  Pr.  81;  Dougherty  v. 
Commonwealth,  69  Pa.  St.  286  (1871). 


SEC.  341.]  PRESENCE   OF   THE   DEFENDxiNT.  377 

at  eacli  recorded  step ;  it  being  sufficient  where  the  presence 
necessarily  results  from  other  matters  stated,  or  itotherwise 
appears  from  a  consideration  of  the  whole  record.^  Where 
the  record  shows  the  prisoner  present  on  one  day  of  the  trial, 
it  will  not  be  presumed  that  he  was  present  on  the  following 
day .2  In  Shapoonmash  v.  United  States  ^  on  a  trial  for 
murder,  where  the  record  showed  that  the  prisoner  was  in 
court  at  the  commencement  of  the  trial,  and  that  the  conit 
adjourned  from  one  day  to  the  next,  but  nothing  was  said 
about  the  prisoner  until  after  the  jury  rendered  their  verdict, 
when  it  appeared  that  the  court  "remanded  the  prisoner  to 
the  custody  of  the  marshal,"  it  was  held,  that  it  could  not 
be  presumed  that  the  prisoner  was  present  in  court  when  the 
verdict  was  rendered. 

In  the  case  of  State  v.  Schoenwald*  an  entry  of  the  pro- 
ceedings on  the  second  day  of  the  trial  in  the  following  form : 
"  Now  again  come  as  well  the  parties  aforesaid  as  also  the 
the  jurors,"  &c.,  was  held  to  sufficiently  show  the  presence 
of  the  defendant.  And  in  Lesehi  v.  Territory  ^  on  a  trial  for 
murder,  the  record  set  forth  the  verdict :  "  We,  the  jury,  do 
find  the  defendant  L  guilty  as  charged  in  the  indictment,  and 
that  he  suffer  death ;  and  thereupon  defendant  gives  notice 
for  a  motion  for  a  new  trial."  The  sentence  then  followed 
on  the  record,  "and  the  defendant  saying  nothing  why  judg- 
ment should  not  be  pronounced  against  him,  it  is  considered," 
&c.,  and  the  court  held,  that  it  sufficiently  appeared  that  the 
defendant  was  not  only  present  when  the  verdict  was  ren- 

1  vSwceden    v.    State,  -19    Ark.    205  Schirmcr  i'.  People,  33  111.  270  (1864)  ; 

(1857);    Smith  v.  State,  60   Ga.  430  Rhodes  v.  State,  23   Ind.  24  (18(55); 

(1878)  ;    State  v.  Wood,  17   Iowa,  18  State  v.  Wood,  17    Iowa,  18  (1804)  ; 

(1804)  ;  State  v.  Coleman,  27  La.  An.  Dodge  v.  People,  4  Neh.  220  (1876)  ; 

691  (1875)  ;  Jeffries  y.  Commonwealth,  Holmes  r.  Commonwealth,  25  Pa.  St. 

04    Mass.    (12    Allen)     145    (1800)  ;  221    (1855)  ;    Lesehi    v.    Washington 

Grimmr.  People,  14  Mich.  300  (1806);  Territory,    1    Wash.    Tr.    13-   (1857); 

Barley  v.  State,  1    Neb.  385   (1868)  ;  Hill  v.  State,  17  Wis.  675  (1864). 
Stephens    v.   People,    19  N.    Y.    549  2  Scaggs  v.  State,  16  Miss.  (8  Smed. 

(1859)  ;    Stephens  v.  Peofle,  4  Park.  &  M.)  722   (1847)  ;  State  v.  Jones,  01 

Cr.  Cas.  (N.  Y.)  396  (1859)  ;   State  v.  Mo.  232  (1875)  ;  State  v.  Schoenwald, 

Craton,  6  Ired.  (N.  C.)  L.  104  (1845)  ;  31  Mo.  147  (1860)  ;  State  v.  Cross,  27 

Jacobs  V.  Commonwealth,  5   Serg.  &  Mo.  332   (1858);    State    v.  Collins,   8 

R.   (Pa.)    315    (1819)  ;    Lawrence    v.  Ired.  (N.  C.)  L.  407  (1848). 
Commonwealth,  .30   Gratt.  (Va.)  845  ^  i  Wash.  Tr.  219  (1802). 

(1878).     Presumptions  are  sometimes  *  31  Mo.  147  (1800). 

indulged  in  for  or  against  a  record:  ^  1  Wash.  Tr.  22  (1857). 


378  HOMICIDE.  [chap.  XIX. 

dered  against  liim,  but  that  he  was  present  when  the  sentence 
was  pronounced. 

Some  of  the  cases  hokl  that  the  record  must  state  that 
the  prisoner  was  present  when  the  trial  began,  though  silent 
regarding  his  presence  at  some  subsequent  step,  the  presump- 
tion being  in  favor  of  the  regularity  of  the  proceedings  and 
the  presence  of  the  defendant.^  Thus  it  has  been  held  that  on 
an  appeal  in  a  capital  case,  the  record  must  show  affirmatively 
that  the  defendant  was  personally  present  in  court  when 
the  day  for  his  trial  was  fixed  and  the  order  made  for  sum- 
moning a  special  venire/  Also  that  where  a  motion  for  a 
new  trial  is  made  by  one  who  has  been  convicted  of  murder, 
the  record  must  affirmatively  show  the  presence  of  the  pris- 
oner when  his  motion  is  overruled.^ 

But  where  from  the  whole  record  it  may  fairly  be  inferred 
that  the  defendant  w\as  present,  the  absence  of  a  formal  state- 
ment to  that  effect  is  not  fatal  to  the  conviction.* 

The  absence  of  defendant's  counsel  is  generally  no  ground 
for  reversal,  where  the  proceedings  were  regular  and  no 
prejudice  to  the  defendant  is  shown.  Thus  absence  of  coun- 
sel when  a  verdict  of  guilty  of  murder  was  rendered,  the 
jury  being  properly  polled,  is  no  ground  for  a  new  trial.*^ 

Sec.  342.  Same  —  Forfeiture  of  right.  —  While  it  is  true 
as  a  general  rule  that  a  person  accused  of  a  homicide  has  a 
constitutional  right  to  be  present  during  all  stages  of  the 
trial,  yet  he  may  forfeit  that  right.  Thus  it  has  been  said 
that  his  removal  will  be  justified  if  he  disturbs  or  interrupts 
the  district  attorney  in  a  loud  voice,  though  admonished  by 
the  court  to  refrain  ;  he  may  be  removed  from  the  court-room, 
by  order  of  court,  to  an  adjoining  room,  with  liberty  of  access 
for  his  counsel ;  and  the  fact  that  the  prosecuting  officer 
opened  and  closed  his  speech  during  the  prisoner's  absence, 
where  he  was  present  during  the  remainder  of  the  trial,  it  will 
not  be  such  error  as  to  justify  a  reversal  of  the  conviction.*' 

1  State  V.  Cartwright,  10  Oroir.  190  3  Simpson  v.  State,  56  Miss.  297 
(1881).        Compare    Shapoonmasli    v.     (1879). 

United     States,    1    Wash.  Tr.     219          *  Lawrence   v.  Commonwealth,  .30 

(18(i2).  Gratt.  (Va.)  84r)  (1878). 

2  Sylvester  v.  State,  71  Ala.  17  »  Tenn  r.  State, 02  Miss. 450  (1884). 
(1881).  "  United  States  v.  Davis, 6  Blatchf. 

C.  C.  404  (1869). 


SEC.  343.]  PRESENCE   OF   THE   DEFENDANT. 


379 


Sec.  343.  Same  —  Waiver  of  right.  —  It  has  been  said 
that  in  a  trial  for  feh)ny  the  defendant  cannot  waive  his 
right  to  be  present  during  the  proceedings  ;  ^  but  there  are 
cases  holding  that  he  may  waive  the  right  to  be  present  at 
some  minor  steps  in  the  proceedings  by  volnntarily  remaining 
absent,  or  otherwise  ;  ^  and  his  appeal  is  properly  heard  in 
his  absence.3  Thus  where  the  accused  voluntarily  absents 
himself  from  the  court  during  the  trial,  or  if  a  prisoner,  dur- 
ing the  progress  of  his  trial,  absconds,  he  is  considered  to 
have  waived  his  right  to  be  present.^  The  waiver  mnst 
be  the  act  of  the  accused  himself,  and  not  that  of  his  coun- 
sel ;  ^  and  his  absence  must  be  due  to  his  own  voluntary  act ; 
for,  if  he  is  prevented  from  being  present  by  being  confined  in 
jail,  proceeding  with  the  trial  in  his  absence  will  be  an  irreg- 
ularity for  which  a  new  trial  will  be  granted.^  In  one  case 
the  court  say :  "  We  conceive  it  to  be  the  right  of  an  accused 
person  to  be  present  during  the  trial  of  his  case,  and  at  the 
return  of  the  verdict,  and  we  think  that  when  deprived  of 
these  privileges  by  being  imprisoned  in  a  jail,  or  in  any  other 
improper  manner,  the  verdict  returned  against  him  should 


1  Cook  V.  State,  60  Ala.  39  (1877)  ; 
Waller  v.  State,  40  Ala.  USS  (1807)  ; 
Prine  v.  Communwealtli,  18  Pa.  St. 
103  (1851)  ;  Commonwealth  v.  Sliaw, 
1  Crunirine  (Pa.)  498  (1859);  s.c.  1 
Pitts  (Pa.)  498 ;  Jackson  v.  Common- 
wealth, 19  Gratt.  (Va.)  664  (1870). 

In  Jackson  v.  Commonwealth,  19 
Gratt.  (Va.)  664  (1870)  it  is  said: 
"  No  principle  is  supposed  to  be  better 
settled,  and,  in  all  criminal  trials  of 
the  grade  of  felony,  more  rigidly  ad- 
hered to,  than  that  in  all  such  trials, 
the  prisoner  has  a  right  to  be  present 
in  every  stage,  from  the  arraignment 
to  the  rendition  of  the  verdict.  It  is 
held  to  be  a  right  of  which  he  cannot 
be  deprived,  and  which  he  cannot 
waive.  So  imperative  is  the  rule  of 
law  that  no  part  of  the  trial  can  pro- 
ceed without  him  ;  "  and  in  Prine  ;•. 
Commonwealth,  18  Pa.  St.  105  (1851), 
that  "  the  right  of  a  prisoner  to  be 
present  at  his  trial  is  inherent  and 
inalienable." 


2  See  Territory  v.  Gay,  2  Dak.  125 
(1879)  ;  Epps  v.  State, 'l02  Ind.  539 
(1885)  ;  s.c.  6  Am.  Cr.  Rep.  517 ; 
1  N.  E.  Rep.  491  ;  State  v.  Wamire, 
10  Ind.  357  (1861) ;  McCorkle  r. 
State,  14  Ind.  39  (1859)  ;  State  v. 
Reckards.  21  Minn.  47  (1874)  ;  Wil- 
son V.  State,  2  Ohio  St.  319  (1853)  ; 
Hill  V.  State,  17  Wis.  675  (1864). 

3  State  i:  David,  14  S.  C.428  (1880). 
*  McCorkle    v.    State,    14    Ind.    39 

(1859);  Price  v.  State,  36  Miss.  531 
(1858)  ;  Lynch  v.  Commonwealth,  88 
Pa.  St.  189  (1879)  ;  s.c.  32  Am.  Rep. 
445;  United  States  r. Santos, 5Blatchf. 
C.  C.  104  (1862). 

5  People  V.  Perkins,  1  Wend.  (N.  Y.) 
91  (1828)  ;  Rose  v.  State,  20  Ohio,  31 
(1851)  ;  Rex  v.  Streek,  2  Car.  &  P. 
413  (1826). 

e  Wheeler  v.  State,  14  Ind.  573 
(1860)  ;  Jones  v.  State,  26  Ohio  St. 
208  (1875)  ;  Rose  v.  State,  20  Ohio, 
31  (1851). 


380  HOMICIDE.  [chap.  XIX. 

not  be  followed  by  judgment  or  sentence  of  the  court,  but  a 
new  trial  should  be  ordered  if  requested." 

The  presence  of  the  defendant  at  the  hearing  of  his  coun- 
sel on  an  application  for  a  new  trial,  or  in  arrest  of  judgment 
seems  not  to  be  necessary,^  or  on  the  hearing  of  a  motion  to 
quash  an  indictment  for  murder,^  unless  he  claims  the  con- 
stitutional right  to  be  heard  in  person,^  and  though  highly 
proper,  it  is  not  necessary  that  the  prisoner,  charged  with  a 
capital  offence,  should  be  present  in  court  at  any  time  between 
the  verdict  and  sentence.*  A  contrary  rule,  however,  pre- 
vails in  some  states.^  Thus  in  Pennsylvania  it  has  been  held 
that  the  right  to  be  present  in  felony  cases  cannot  be  waived, 
either  by  the  prisoner  or  his  counsel,  by  consent  or  otherwise.^ 

The  same  is  true  where  the  jury  return  into  the  court- 
room for  further  instructions.'^ 

Sec.  344.  Same  —  Temporary  absence. — It  has  been 
said  that  temporary  absence  of  the  accused  from  the  court- 
room during  a  portion  of  the  trial,  when  voluntary,  will  not 
vitiate  the  proceedings  in  a  homicide  case.^  And  in  any  event 
such  an  objection  comes  too  late  after  verdict,  or  when  made 
for  the  first  time  on  a  motion  for  a  new  trial.^  Temporary 
absence  from  the  court-room  when  the  prosecuting  officer 
commenced  his  closing  address  to  the  jury,  will  not  be  cause 
for  reversal  of  a  conviction,  in  the  absence  of  a  showing  that 
any  substantial  portion  of  the  agreement  was  made   before 

1  People  V.  Ormsby,  48  Mich.  494  ■*  Jewell  v.  Commonwealth,  22  Pa. 

(1882)  ;  s.c.  12  N.  W.  Rep.  671.  St.  94  (1853). 

In  the  case  of  State  v.  Decklotts,  &  See  Rolls  v.  State,  52  Miss.  391 
19   Iowa,  447   (1865),  a  prisoner  ob-  (1876)  ;   Prine  r.  Commonwealth,  18 
jected  to  sentence  in  a  murder  cause  Pa.  St.  103  (1851)  ;  Dunn  v.  Common- 
on    the    ground    that   he   was    not   in  wealth,  6  Pa.  St.  384  (1847)  ;  Shipp  r. 
court  when  a  motion  for  a  new  trial  State,  11  Tex.  App.  46  (1882). 
was  made  and  determined.     Tlie  court  **  Prine   v.  Commonwealth,  18  Pa. 
offered  to  hear  a  re-argument  of  the  St.    103    (1851)  ;    Dunn   v.   Common- 
motion,   which   was    declined   by   the  wealth,  6  Pa.  St.  384  (1847). 
prisoner,  and  it  was  held   that  there  "^  Sliipp  v.  State,  11  Tex.  App.  46 
was  no  error  to   his   injury  in  over-  (1882).     See  ;)os^,  §  347. 
ruling  the  objection.  ^  McCorkle    v.    State,    14    Ind.    89 

2Epps('.  State,  102  Ind.  539  (1885);  (1859);    Hill    v.    State,    17    Wis.  675 

s.c.  5  Am.  Cr.  Rep.  517 ;  1  N.  E.  Rep.  (1864)  ;  s.c.  86  Am.  Dec.  736. 
491.  3  Tuttle  V.  State,  6  Tex.  App.  556 

3  State   V.   Jefcoat,   20   S.   C.    383  (1879). 
(1883). 


SEC.  347.]  PEESEXCE   OF   THE   DEFENDANT.  381 

the  accused's  return,  or  that  the  defendant  was  prejudiced 
thereby.^ 

Sec.  345.    Presence  during  delivery  of  testimony.  —  In 

the  trial  of  homicide  cases  as  well  as  all  other  felonies,  the 
defendant  should  be  present  during  the  delivery  of  the  testi- 
mony against  liim.^  But  in  some  jurisdictions  it  is  held  that 
the  prisoner  may  waive  his  right  to  be  present  during  the 
delivery  of  the  testimony  against  him,  and  that  if  he  volun- 
tarily absents  himself  he  will  be  held  to  have  waived  such 
right.^ 

Sec.  346.  Attending  on  inspection. — Where  during  the 
progress  of  a  trial  for  any  of  the  various  degrees  of  homicide, 
on  application  the  court  grants  an  inspection  of  the  premises 
where  the  homicide  is  alleged  to  have  been  committed,  the 
accused  must  be  permitted  to  attend  such  inspection ;  be- 
cause to  allow  such  an  examination  to  be  made  out  of  the 
presence  and  in  the  absence  of  the  accused  would  be  a  viola- 
tion of  his  constitutional  rights,  and  ground  for  reversal.* 

Sec.  347.    Presence  during  instruction  to  jury.  —  In  all 

homicide  cases,  as  well  as  all  other  felonies,  the  accused  has 
a  right  to  be  present  while  the  judge  is  charging  the  jury  in 
the  case,^  gi'^'ing"  them  farther  instructions,^  or  informing 
them  as  to  the  evidence  on  certain  points,""  or  the  reading  to 
them  of  the  evidence  as  taken  down  by  the  court.^  He  also 
has  the  right  to  have  his  counsel  present  on  such  occasions.^ 

1  State  V.  Grate,  68  Mo.  22  (1878).  ^  See  Martin  v.  State,  51  Ga.  567 

2Kolls    V.     State,    52     Miss.    391  (1874) ;  People  r.  Trim,  37  Cal.  274 

(1876)  ;   Jackson    v.    Comnionwealtli,  (1809).     Instructions  cannot  be  sent 

19  Gratt.  (Va.)  664  (1870).  to  jury  in  absence  of  accused.     Holton 

3  McCorkle    v.    State,   14   In.l.   39  v.  State,  2  Fla.  470  (1849).     Nor  a 

(1859).  copy  of  the  statute  calling  attention 

*  State   V.  Bertin,  24    La.   An.  46  to  the  sections  relating  to   homicide. 

(1872).     See  Benton  f.  State,  .30  Ark.  Gandolfo   v.  State,   11   Ohio   St.  114 

328  (1875)  ;  State  v.  Sanders,  68  Mo.  (1860). 

202   (1878);   s.c.  30   Am.   Rep.   782;  ^  Maurer   v.    People,   43   N.   Y.    1 

Carroll  v.   State,  5  Neb.  31    (1876);  (1870). 

Eastwood  r.  People,  3  Park.  Cr.  Cas.  »  Wade  v.  State,  12  Ga.  25  (1852). 

(N.  Y.)  25  (1855).     Compare  StAte  v.  »  People    v.    Trim,    37    Cal.    274 

Adams,  20  Kan.  311    (1878)  ;   s.c.  7  (1809)  ;   Martin  v.  State,  51  Ga.  567 

Cent.  L.  J.  117.  (1874). 

5  State    V.    Blackwelder,    1    Phil. 
(N.  C.)  38  (1866). 


882  HOMICIDE.  [chap.  XIX. 

But  where  the  jury  are  unable  to  agree  on  a  verdict,  it  is  not 
essential  that  the  prisoner  be  present  when  they  come  in  and 
announce  the  fact  to  the  court,  and  are  again  sent  out  to 
their  room  to  try  and  agree  upon  a  verdict.^ 

Sec.  348.  Presence  when  verdict  received.  —  The  defend- 
ant must  be  present  in  all  homicide  cases  when  the  verdict  is 
received.^  The  reason  for  this  is  first  the  accused's  right  to 
see  that  the  verdict  is  sanctioned  by  all  the  jurors ;  and  sec- 
ond, that  the  accused  if  convicted,  may  be  under  the  power 
of  the  court  and  subject  to  its  judgment.^  Where  a  verdict 
has  been  rendered  in  the  absence  of  the  defendant  the  defect 
will  not  be  cured  by  re-assembling  the  jury  after  discharge, 
that  they  may  assent  to  and  return  the  verdict  in  the  ac- 
cused's j)resence.*  But  in  those  cases  where  the  jury  have 
dispersed  with  the  prisoner's  consent,  leaving  the  verdict  with 
the  foreman,  to  be  returned  by  him  into  court,  it  is  thought 
not  to  be  indispensable  that  the  prisoner  should  be  pres- 
ent when  the  act  of  return  takes  place  in  pursuance  of  the 
contract ;  and  that  though  he  be  confined  in  jail  at  the  time, 
the  verdict  will  not  on  that  account  be  illegal.^  It  has  been 
said  that  a  momentary  absence  from  the  court-room  when  the 
verdict  in  a  case  of  felony  is  rendered  and  recorded  by  the 


I  Lawrence   v.  Commonwealth,  30  32  Am.  Eep.  445 ;  Dunn  ?•.   Common- 

Gratt.  (Va.)  852  (1878).  wealth,  6  Pa.  St.  384  (1847)  ;  Andrews 

-  See   Cole   u.   State,    10   Ark.  318  v.  State,  34  Tenn.  550  (1855);  Clark 

(1850);    Sneed   v.   .SYa^e,  5   Ark.  431  ;;.   State,  23  Tenn.    (4   Humph.)   254 

(1843)  ;  s.c.  41  Am.  Dec.  102;  People  (1843);    Jackson    v.    Commonwealth, 

r.    Beauchamp,    49    Cal.    41    (1874);  19  Gratt.  (Va.)  064  (1870). 

Nolan  V.    Slate,  55   Ga.   521    (1875);  3  Stubbs    v.    State,    49    Miss.    722 

s.c.  21    Am.    Rep.  281;    Nomaque    v.  (1874). 

People,  1  111.  (1  Breese)  109  (1825)  ;  *  Cook  v.  State,  60  Ala.  39  (1877) ; 

s.c.    12   Am.    Dec.    157;    HoUiday    v.  State  v.    Wilsov,  50  Ind.  487   (1875); 

People,  9  111.  (4  Gilm.)  Ill   (1847);  s.c.  19  Am.  Rep.  719.     See  Sneed  v. 

State  y.  Outs,  30  Lii.  An.  1155  (1878)  ;  State,   5   Ark.   431    (1843);   State   v. 

State  I'.  Ford,  30  La.  An.  311  (1878)  ;  Ilurlbut,  1  Root  (Conn.)   90  (1784)  ; 

Rolls  V.  State,  52  Miss.  391   (1876);  Price  v.   State,  36  Miss.  531   (1858); 

State   V.   Braunschweig,   36   Mo.  397  s.c.  2  Morris   St.  Cas.  (Miss.)  1168; 

(1865)  ;    State   v.   Cross,  27   Mo.  332  State   v.    Braunschweig,  36    Mo.  397 

(1858)  ;  State  v.  Buckner,  25  Mo.  167  (1865)  ;  Dougherty  v.  Commonwealth, 

(1857);   People  v.  Perkins,  1   Wend.  69  Pa.  St.  286  (1871);  Dunn  ;;.  Com- 

(N.  Y.)  91  (1828)  ;  Rose  v.  State.  20  monwealth,  6  Pa.  St.  384  (1847). 

Ohio,  31   (1851);    State  i-.  Spores,  4  5  Smith  f.  State,  59  Ga.  513  (1877)  ; 

Oreg.  198  (1871)  ;  Lynch  v.  Common-  s.c.  27  Am.  Rep.  393. 
wealth,  88   Pa.   St.   189   (1879);   s.c. 


r 


SEC.  349.]  PKESENCE   OF   THE   DEFENDANT.  383 

clerk  win  not  invalidate  the  verdict,  if  the  prisoner  has  the 
opportunity  of  polling  the  jury.^ 

Some  cases  hold  that  the  accused  may  waive  his  right  to 
be  present  at  the  time  when  the  verdict  is  rendered,  and  that 
where  he  is  tempojaril}^  absent  at  such  time,  in  the  a])sence 
of  evidence  to  the  contrary,  it  will  be  presumed  that  such 
absence  was  voluntary  and  a  waiver  of  his  right  to  be  pres- 
ent.2  If  a  defendant  may  waive  his  right  to  be  present,  he 
must  do  so  in  person,  his  counsel  cannot  do  so  for  him  ;  ^  and 
the  failure  of  counsel  to  object  to  the  rendition  of  the  verdict 
in  the  defendant's  absence  will  not  constitute  a  waiver  of  the 
defendant's  right  to  be  present.* 

It  is  thought,  however,  that  where  the  accused  is  out  on 
bail,  that  it  will  not  be  reversible  error  to  receive  the  ver- 
dict in  his  voluntary  jibsence.^  Thus  where  the  defendant 
absconds  or  escapes  pending  the  trial,  it  is  doubtless  legal  to 
proceed  with  the  trial  and  receive  a  verdict  in  his  absence.*^ 
But  in  Tennessee  a  different  doctrine  prevails,  for  it  is  there 
held  that  the  absence  of  the  prisoner,  even  when  due  to  his 
having  made  his  escape,  deprives  the  court  of  jurisdiction  to 
proceed  with  the  trial,  to  receive  the  verdict,  or  to  pronounce 
final  judgment.'' 

Sec.  349.  Present  on  motion  for  new  trial  and  arrest 
of  jndg-ment.  —  It  has  been  said  that  upon  the  liearing  of  a 
motion  for  a  new  trial,  the  presence  of  the  defendant  is  not 
a  matter  of  right,  and  that  his  absence  will  not  invalidate  the 
proceedings  or  a  sentence  subsequently  passed  upon  him ;  ^ 
but  the  weight  of  authority  is  to  the  effect  that  he  must  be 

1  People  r.  Miller,  .33  Cal.  99  (1867).  «  State    v.    Wamire,    16    Ind.    .357 

2  Hill  V.  State,  17  Wis.  675  (1864).  (1861; ;   Price  v.  State,  36  Miss.  531 

3  Priiie  V.  Commonwealth,  18    Pa.  (1858)  ;  Fight  v.  State,  7   Ohio,  181 
St.  103  (1851)  ;  Andrews  v.  State,  .34  (1835)  ;  s.c.  28  Am.  Dec.  626. 
Tenn.  (2  Sneed.)  550  (1855)  ;  .Tackson  ^  Andrews   v.    State,   34   Tenn.    (2 
V.    Commonwealth,    19   Gratt.     (Va.)  Sneed.)  550  (1855) ;  Witt  v.  State,  5 
656  (1870).  Coldw.  (Tenn.)  11   (1867)  ;  Hutchin- 

*  Cook  V.  State,  60  Ala.  39  (1877).  son    v.   State,   3   Coldw.    (Tenn.)    95 

5  Stubbs    V.   State,    49    Miss.    716  (1866). 
(1874)  ;  Price  v.   State,  36  Miss.  531  »  Commonwealth   v.    Costello,    121 

(1858)  ;   Wilson  v.  State,  2  Ohio  St.  Mass.  371   (1876)  ;  s.c.  28  Am.  Rep. 

319  (18.53)  ;  Crusen  v.  State,  10  Ohio  277  ;  Jewell  v.  Commonwealth,  22  Pa. 

St.  258  (1859)  ;    Lynch    v.   Common-  St.  94  (1853). 
wealth,  88  Pa.  St.  189  (1879);  s.c.  32 
Am.  Rep.  445. 


384 


HOMICIDE. 


[chap.  XIX. 


present.^     The  accused  must  also  be  present  on  the  argument 
of  a  motion  in  arrest  of  judgment.^ 

Sec.  350.  Presence  presumed.  —  Some  of  the  cases  hold 
that  unless  it  affirmatively  appears  from  the  record  that  the 
defendant  was  personally  present  during  the  trial,  the  judg- 
ment should  be  reversed.^  In  view  of  the  fact,  however, 
that  an  appellate  court  will  not  presume  error  on  the  part  of 
the  court  below,  it  is  thought  that  where  the  record  shows 
that  the  accused  was  present  at  the  commencement  of  his 
trial,  and  nothing  to  the  contrary  appears  therefrom,  it  will 
be  presumed  that  he  was  present  at  every  subsequent  stage 
of  the  proceeding  down  to  the  rendering  of  the  final  judg- 
ment of  the  court.^ 

Sec.  351.  Presence  of  counsel.  —  It  seems  that  if  the 
defendant  himself  is  present,  it  is  not  necessary  that  his  coun- 
sel should  be,  in  the  absence  of  a  showing  that  the  defendant 
was  thereby  prejudiced.^ 


1  Simpson  v.  State,  5G  Miss.  207 
(1879)  ;  Rolls  v.  State,  52  Miss.  891 
(1876);  State  v.  Rippon,  2  Bay  (S.C.) 
100  (1797);  Hooker  v.  Commonwealth, 
13  Gratt.  (Va.)  768  (1855)  ;  Reg.  v. 
Caudwell,  15  Jur.  1011  (1851);  17  Q. 
B.  503 ;  6  Eng.  L.  &  Eq.  352  ;  King 
V.  Fielder,  2  Dow.  &  Ry.  46  (1822). 
Compare  Commonwealth  t^  Costello, 
121  Mass.  371  (1876)  ;  Jewell  v.  Com- 
monwealth, 22  Pa.  St.  9-1  (1853)  ; 
King  i:  Hollingberry,  6  Dow.  &  Ry. 
344  (1825). 

2  Rolls  V.  State,  52  Miss.  .391  (1876); 
State  V.  Rippon,  2  Bay  (S.  C.)  L.  100 
(1797)  ;  Rex  v.  Spragg,  2  Burr.  930 
(1760)  ;  S.C.  1  W.  Bl.  209. 

3  Graham  v.  State,  40  Ala.  659 
(1867);  Eliza  v.  State,  39  Ala.  693 
(1866);  Kelly  v.  State,  11  Miss.  (8 
Smed.  &  M.)  518  (1844)  ;  State  v. 
Dool}',  64  Mo.  149  (1876)  ;  State  ;•. 
Allen,  64   Mo.  67    (1876)  ;    State   v. 


Barnett,  63  Mo.  300  (1876)  ;  State  v. 
Jones,  61  Mo.  232  (1875)  ;  State 
V.  Barnes,  59  Mo.  154  (1875)  ;  Sha- 
poonmash  v.  United  States,  1  Wash. 
Tr.  219  (1862)  ;  Younger  v.  State,  2 
W.  Va.  579  (1868).  ' 

*  Brown  v.  State,  13  Ark.  96  (1852)  ; 
Smith  V.  State,  60  Ga.  430  (1878)  ; 
Rhodes  v.  State,  23  Ind.  24  (1865)  ; 
Harriman  v.  State,  2  Greene  (Iowa) 
270  (1849)  ;  Grimm  v.  People,  14 
Mich.  300  (1866)  ;  Dodge  v.  People, 
4  Neb.  220  (1876)  ;  Stephens  v.  Peo- 
ple, 19  N.  Y.  549  (1859)  ;  State  v. 
Craton,  6  Ired.  (N.  C.)  L.  164  (1845)  ; 
Holmes  v.  Commonwealth,  25  Pa.  St. 
221  (1855). 

5  Sutcliffe  V.  State,  18  Ohio,  469 
(1849);  S.C.  51  Am.  Dec.  4.59;  Crusen 
r.  State,  10  Ohio  St.  258  (1859)  ; 
Benuniont  r.  State,  1  Tex.  App.  533 
(1877)  ;  S.C.  28  Am.  Rep.  424. 


CHAPTER   XX. 

THE   TRIAL THE  JURY. 

Sec.  352.  Right  to  trial  by  jury. 

Sec.  353.  Waiver  of  trial  by  jury. 

Sec.  354.  Drawing,  summoning,  and  impanelling  jury. 

Sec.  355.  Qualiiications  of  jurors. 

Sec.  356.  Same  —  Conviction  of  infamous  crime  —  Pardon. 

Sec.  357.  Same  —  When  objection  to  be  taken. 

Sec.  358.  Defendant's  list. 

Sec.  359.  Challenge  for  cause  — Implied  bias. 

Sec.  360.  Same — Actual  bias. 

Sec.  361.  Same  —  Prejudice  against  capital  punishment. 

Sec.  362.  Same  —  Prejudice  against  defence  of  insanity. 

Sec.  363.  Same  —  Prejudice  against  "  anarchism." 

Sec.  364.  Same  —  Prejudice  against  circumstantial  evidence. 

Sec.  365.  Same  —  Kight  to  challenge  —  Re-opening  right. 

Sec.  366.  Peremptory  challenges. 

Sec.  367.  Swearing  the  jury. 

Sec  368.  Discharge  of  jurors. 

Sec.  369.  Separation  —  During  trial. 

Sec.  370.  Same  —  Permission  to  visit  sick  relation. 

Sec.  371.  Same  —  During  meals,  etc. 

Sec.  372.  Same  —  Separation  after  retiring. 

Sec.  373.  Misconduct  by  or  relating  to  the  jury  during  trial. 

Sec.  374.  Same  —  As  to  officer  in  charge. 

Sec.  375.  Same  —  Holding  communication  with  outside  parties. 

Sec  376.  Same  —  Attending  church. 

Sec  377.  Same—  Use  of  liquor  by  jury. 

Sec  378.  Same  —  Discretion  of  trial  judge. 

Sec  379.  Same  —  Conduct  and  words  of  counsel. 

Sec  380.  Same  —  Waiver  of  irregularities. 

Sec  381.  Misconduct  by  or  relating  to  the  jury  after  retiring. 

Sec.  382.  Same  —  Law  books  in  jury  room. 

Sec  383.  Same  —Examining  things  not  in  evidence. 

Sec.  352.  Right  to  trial  by  jury.  —  The  right  to  a  trial 
by   jurj-  is  a  constitutional  right  ^  in  all  homicide  cases  of 

1  The  federal  constitution  and  tlie     with  varying  phraseology,  provide  for 
constitutions   of  the   different  states,     the    perpetuity  of  trial  by  jury  and 
2  c  385 


386 


HOMICIDE. 


[chap.  XX. 


wliicli  the  accused  cannot  be  deprived  Ly  law.^  The  pro- 
visions of  the  various  state  constitutions,  guaranteeing  the 
right  of  trial  by  jury,  differ  somewhat  in  form  ;  but  the  gen- 
eral principle  contained  in  all  of  them  is,  that  the  right  of 
trial  by  jury,  as  known  and  exercised  by  the  people  of  the 
state  at  the  time  of  the  adoption  of  the  constitution,  shall 
be  preserved  and  guaranteed  to  them  under  the  constitution. 
In  order,  therefore,  to  determine  in  what  cases  the  right  to 
trial  by  jury  in  any  particular  state  exists,  it  is  necessary  to 
definitely  ascertain  what  was  the  extent  of  the  right  to  that 
mode  of  trial,  under  the  established  law  and  practice  of  that 
state,  at  the  time  when  it  adopted  its  constitution.  Professor 
Pomeroy,  in  his  valual)le  note  to  the  second  edition  of  Sedg- 
wick on  the  Construction  of  Statutory  and  Constitutional 
Law,  says  :'^  "  It  is  the  right  of  trial  by  jury  which  exists  and 
is  preserved,  and  what  that  right  is,  is  a  purely  historical 
question,  a  fact  to  be  ascertained  like  any  other  social,  legal, 
or  political  fact.  As  a  constitution  speaks  from  the  time  of 
its  adoption,  the  fact  of  the  right  to  jury  trial,  which  is  ascer- 
tained to  have  existed  at  that  time,  must  necessarily  deter- 


positively  forbid  its  violation.  See, 
for  the  provisions  of  tlie  various  state 
constitutions  relating  to  trial  by  jury 
in  criminal  cases,  Ala.  Const.  1868, 
art.  1,  §  8;  Ark.  Const.  18()8,  art.  1, 
§  8;  Conn.  Const.  1818,  art.  1,  §  0; 
Del.  Const.  1831,  art.  1,  §  7;  Ga. 
Const.  1868,  art.  1,  §  7 ;  111.  Const. 
1870,  art.  2,  §  0;  Ind.  Const.  1851, 
art.  1,  §  13;  Iowa  Const.  1857,  art.  1, 
§  10;  Kan.  Bill  of  Kights,  1859,  §  10; 
Ky.  Const.  1850,  art.  13,  §  Ti ;  La. 
Const.  1868.  tit.  1,  §  6;  Me.  Const. 
1820,  art.  1,  §  6;  Md.  Bill  of  Riglits, 
1867,  art.  11;  Mass.  Bill  of  Kicrhts, 
1870,  art.  12;  Midi.  Const.  1850,  art. 
6,  §  28;  Minn.  Const.  1857-8,  art.  1, 
§  6;  Miss.  Const.  1868,  art.  1,  §  7; 
Mo.  Const,  art.  1,  §  18;  1  Neb.  C;onst. 
1867,  art.  1,  §  7  ;  N.  H.  Bill  of  Iliglits, 
1792,  art.  16;  N.  J.  Const.  1844,  art. 
1.  §  8;  N.  C.  Const.  1868,  art.  1,  §  13  ; 
Dliio  Const.  1850,  art.  1,  §  10;  Oreg. 
Const.  1857,  art.  1,  §  11  ;  Pa.  Const. 
1838,  art  9,  §  9;  K.  I.  Const.   1842, 


art.  1,  §  10;  S.  C.  Const.  1868,  art.  1, 
§§  13,  14;  Tenn.  Const.  1870,  art.  1, 
§"9;  Tex.  Const.  1869,  art.  1,  §  8 ; 
Vt.  Bill  of  Rights,  1793,  art.  10;  Va. 
Const.  1870,  art.],  §  10;  W.Va.  Const. 
1872,  art.  3,  §  14;  Wis.  Const.  1848, 
art.  1,  §  7. 

'J'he  sixth  amendment  to  tlie  Con- 
stitution of  the  United  States  provides 
for  jury'trials  in  all  criminal  prose- 
cutions, but  tills  provision  applies  only 
to  cases  tried  in  the  United  States  courts. 
See  Twitchell  v.  Commonwealth,  74 
U.  S.  (7  Wall.)  321  (1868);  bk.  19 
L.  ed.  223  ;  Lee  v.  Tillotson,  24  Wend. 
(N.  y.)  337  (1840). 

1  Hill  r.  People,  20  N.  Y.  363 
(1859)  ;  Wyneiiamor  ?•.  People,  13 
X.  Y.  378  (1856)  ;  People  v.  Baird, 
11  Ilun  (N.  Y.)  289  (1877)  ;  People 
v.  Kennedy,  2  Park.  Cr.  Cas.  (N.  Y.) 
312  (1855)  ;  Copp  v.  Henniker,  55 
N.  H.  179  (1875)  ;  s.c.  20  Am.  Rep. 
194,  197. 

2  See  p.  487. 


SEC.  353.] 


THE   JURY. 


387 


mine  the  meaning  of  the  clause  which  recognizes  and  pre- 
serves that  right.  The  courts  seem,  with  great  unanimity, 
to  liave  accepted  this  general  principle  of  construction,  and 
not  to  liave  rested  their  decisions  upon  the  special  language 
of  the  clause  under  consideration.'"  In  the  case  of  Copp  v. 
Henniker  ^  it  is  said,  "  The  right  is  the  historical  right  enjoyed 
at  the  time  it  was  guaranteed  by  tlie  constitution  "  ;  in  East 
Kingston  v.  Towle  ^  that,  "  The  trial  by  jury  secured  to  the 
subject  by  the  constitution  is  a  trial  according  to  the  course 
of  the  common  law,  and  the  same  in  substance  as  that  which 
was  in  use  when  the  constitution  Avas  framed."  On  this  point 
all  the  decisions  agree.^  These  provisions  of  the  various  state 
constitutions  relative  to  the  right  of  trial  by  jury  were  neither 
intended  to  increase  nor  restrict  or  otherwise  impair  the  right 
as  it  existed  at  the  time;*  and  they  do  not  extend  the  right  to 
cases  unknown  to  the  conunon  law.^ 

Sec.  353.  Waiver  of  trial  by  jury.  —  The  right  to  a  trial 
by  jury  is  a  constitutional  right  of  which  one  accused  of  homi- 
cide or  other  felony  cannot  be  deprived  by  law,^  and  one 


155N.  H.  179,  195  (1875). 

2  48N.  H.  57,  64  (1868). 

3  Tims  V.  State,  26  Ala.  165  (1855)  ; 
Whallon  v.  Bancroft,  4  Minn.  109 
(1860)  ;  Koppikus  v.  Commissioners 
of  State  Capitol,  16  Cal.  248  (1860)  ; 
Guile  V.  Brown,  38  Conn.  237  (1871)  ; 
Lake  Erie  W.  &St.  L.  R.  Co.  r.  Heath, 
9Ind.  538  (1857);  Ross  v.  Crawford 
Co.,  16  Kan.  411  (1876)  ;  Swart  v. 
Kimball,  43  Mich.  443  (1880)  ;  s.c. 
N.  W.  Rep.  635;  Tabor  v.  Cook,  15 
Mich.  322  (1867)  ;  Commissioners  v. 
Morrison,  22  Minn.  178  (1875)  ;  Opin- 
ion of  Justices,  41  N.  H.  550  (1859)  ; 
Backus  V.  Lebanon,  11  N.  H.  19 
(1840)  ;  State  v.  Raymond,  11  Nev. 
98  (1876)  ;  State  v.  McClear,  11  Nev. 
39  (1876) ;  Howe  i\  Treasurer  of 
Plainfield,  37  N.  J.  L.  (8  Vr.)  145 
(1874)  ;  Sands  v.  Kimbark,  27  N.  Y. 
147  (1863)  ;  People  v.  Fisher,  20  Barb. 
(N.  Y.)  652  (1855)  ;  Murphy  v.  Peo- 
ple, 2  Cow.  (N.  Y.)  815  (1824)  ;  Peo- 
ple V.  Clark,  23  Hun  (N.  Y.)  374 
(1881);  Howell  v.  Fry,  19  Ohio  St. 
556  (1869)  ;  Rhines  v.  Clark,  51  Pa. 


St.  96  (1865)  ;  Byers  v.  Common- 
wealth, 42  Pa.  St.  89  (1862)  ;  Com- 
missioners V.  Seabrook,  2  Strob. 
(S.  C.)  L.  560  (1846)  ;  Trigally  v. 
Mayor,  &c.  of  Memphis,  6  Coldw. 
(Tenn.)  .382  (1869)  ;  Buffalo  Bayou, 
B.  &  C.  R.  Co.  r.  Ferris,  26  Tex.  588 
(1863);  /n  re  Hackett,  53  Vt.  354 
(1881);  State  v.  Peterson,  41  Vt. 
504  (1869) ;  Dane  Co.  v.  Dunning, 
20  Wis.  210  (1866)  ;  Mead  i'.  Walker, 
17  Wis.  189  (1863)  ;  Stillwell  r.  Kel- 
logg, 14  Wis.  461  (1861). 

*  Howe  V.  Treasurer  of  Plainfield, 
37  N.  J.  L.  (8  Vr.)  145  (1874) ;  Byers 
V.  Commonwealth,  42  Pa.  St.  89 
(1862)  ;  Commissioners  v.  Seabrook, 
2  Strobli.  (S.  C.)  L.  560  (1846)  ;  Mead 
V.  Walker,  17  Wis.  189  (1863);  Stil- 
well  r.  Kellogg,  14  WMs.  461  (1861). 

5  Tims  r.  State,  26  Ala.  165  (1855). 
See  People  v.  Penhallow,  42  Hun 
(N.  Y.)  103  (1886)  ;  Territory  v.  Hit- 
tick,  2  Orleans  T.  R.  (1  Mart.)  La. 
87  (1811). 

«  See  Hill  v.  People,  20  N.  Y.  363 
(1859)  ;   Wynehamer    r.   People,   13 


388 


HOMICIDE, 


[chap.  XX. 


which,  it  is  thought,  cannot  be  voluntarily  waived,  except  by 
a  plea  of  guilty ;  particularly  in  a  capital  case,^  unless  ex- 
pressly permitted  so  to  do  by  constitutional  or  statutory  enact- 
ments.^ The  reason  for  this  rule  is  thought  to  be  because  the 
state  and  the  public  have  an  interest  in  the  preservation  of 
the  liberties  and  the  lives  of  the  citizens,  and  will  not  allow 
either  to  be  taken  away  without  due  process  of  law  and  in 
the  regularly  constituted  manner.  A  further  reason  evidently 
is  that  the  substantial  constitution  of  the  legal  tribunal  and 
the  fundamental  mode  of  its  proceedings  are  not  within  the 
power  of  the  parties,  and  consequently  the  right  to  affect,  by 
consent,  the  conduct  of  the  prosecution  in  such  a  case  should 
not  be  permitted  to  extend  so  far  as  to  work  radical  changes 
in  great  and  leading  provisions  as  to  the  organization  of  the 


N.  Y.  378  (1856);  People  v.  Baird, 
11  Hun  (N.  Y.)  289  (1877). 

i  See  Bond  v.  State,  17  Ark.  290 
(185(5)  ;  Wilson  v.  State,  16  Aik.  601 
(1855)  ;  State  v.  Cox,  8  Ark.  (3  Eng.) 
436  (1818) ;  People  v.  O'Neil,  48  Cal. 
257  (1874);  KelJij  v.  People,  115  111. 
583    (1886)  ;   s.c!   56  Am.  Rep.  184; 

4  N.  E.  Rep.  644;  Allen  v.  State,  54 
Ind.  461  (1876)  ;  Brown  v.  State,  16 
Ind.  496  (1861);  Brown  v.  State,  8 
Blackf.  (Ind.)  561  (1847)  ;  State  v. 
Carman,  63  Iowa,  130  (1884)  ;  s.c.  50 
Am.  Rep.  741 ;  18  N.  W.  Rep.  691  ; 
18  Cent.  L.  J.  317  ;  State  v.  Lyons 
(Iowa)  18  Cent.  L.  J.  481  (1884)  ; 
Tyra  r.  Commonwealth,  2  Met.  (Ky.) 
1  (1859)  ;  Murphy  r.  Commonwealth, 
1  Met.  (Ky.)  365  (1858)  ;  Portland  v. 
Bangor,  65  Me.  120  (1876)  ;  Swart 
V.  Kimball,  43  Mich.  443  (1880)  ;  s.c. 

5  N.  W.  Rep.  635  ;  Underwood  v. 
People,  32  Mich.  1  (1875);  Hill  v. 
People,  16  Mich.  357  (1868)  ;  People 
V.  Smith,  9  Mich.  193  (1861);  Briin- 
ingstool  V.  People,  1  Mich.  N.  P.  260 
(1870)  ;  State  r.  Everett,  14  Minn. 
439  (1869)  ;  Dowling  t-.  State,  13 
Mis.'!.  (5  Smcd.  &  M.)  664  (1816)  ; 
Tillman  r.  Aillos,   13  Miss.   (5  Smed. 

6  M.)  373  (1845)  ;  State  v.  Davis,  66 
Mo.  684  (1877);  State  v.  Mansfield, 
41  Mo.  470  (1867)  ;  Vaughn  v.  Scade, 
30  Mo.  600  (1860);   Ncales  v.  State, 


10  Mo.  498  (1847)  ;  Territory  v.  Ah 
Wall,  4  Mont.  149  (1881)  ;  s.c.  1  Pac. 
Rep.  732 ;    Kleinschmidt   v.   Dunphy, 

1  Mont.  118  (1869)  ;  Opinions  of 
Justices,  41  N.  H.  550  (1859)  ;  Pier- 
son  V.  People,  79  N.  Y.  435  (1880); 
Maurer  v.  People,  43  N.  Y.  1  (1870)  ; 
Cancemi  v.  People,  18  N.  Y.  128 
(1858)  ;  People  v.  Special  Sessions,  4 
Hun  (N.  Y.)  444  (1875)  ;  People  v. 
Rulloff,  5  Park.  Cr.  Cas.  (N.  Y.)  81 
(1860);  Grant  v.  People,  4  Park.  Cr. 
Cas.  (N.  Y.)  534  (1859);  Slate  v. 
Holt,  90  N.  C.  749  (1884)  ;  s.c.  47 
Am.  Rep.  544  ;  Hanoff  v.  State,  37 
Ohio  St.  187  (1881);  Billigheimer  v. 
State,  32  Ohio  St.  441  (1877);  Cant- 
well  >:  State,  18  Ohio  St.  481  (1869)  ; 
Goodin  r.  State,  16  Ohio  St.  344 
(1865)  ;  Williams  v.  State,  12  Ohio 
St.  622  (1861)  ;  Work  r.  State,  2  Ohio 
St.  296  (1853);  Hirn  v.  State,  1  Ohio 
St.  23  (1852)  ;  Lincoln  v.  Smith,  27 
Vt.  328  (1855)  ;  State  r.  Lockwood, 
43  W^is.  403  (1877) ;  Forsyth's  Jury 
Trial,  354;  Proffat's  Jury  Trial,  113; 

2  Story  Const.,  p.  541,  §  1780.  Compare 
State  v.  Kaufman,  51  Iowa,  578  (1879). 

2  State  V.  Worden,  46  Conn.  349 
(18*8)  ;  s.c.  1  Cr.  L.  Mag.  178;  Mays 
r.  Commonwealth,  82  Va.  550  (1886); 
s.c.  4  Va.  L.  J.  88  ;  In  re  Staff,  63 
Wis.  285  (1881)  ;  s.c.  6  Cr.  L.  Mag. 
829 ;  23  N.  W,  Rep.  587. 


SEC.  354.]  THE  JURY.  SS9 

tribunals,  or  the  mode  of  proceeding  prescribed  by  the  consti- 
tution and  the  hxws.^ 

Sec.  3o4.    Drawingr,  summoning,  and  impanelling  jury. 

—  Tlie  proceedings  for  obtaining  jurors  in  prosecutions  for 
homicide  are  usually  the  same  as  in  trials  for  other  felonies ; 
but  it  is  sometimes  provided  that  certain  special  proceedings 
shall  be  had,  or  special  precautions  taken,  in  prosecutions 
where  the  punishment  may  be  capital.^  In  such  cases  all 
proceedings  connected  with  the  jury  should  be  carried  on 
with  especial  care  and  with  the  utmost  caution,  as  an  inci- 
dent of  the  slightest  weight  may  operate  to  the  defendant's 
prejudice  ;  and  where  the  charge  is  for  a  capital  offence,  the 
defendant  should  not  be  allowed  to  waive  the  prescribed  mode 
of  drawing  or  summoning  the  jury,  nor  should  any  of  the 
proceedings  be  varied  in  the  slightest  manner  from  the  mode 
prescribed  by  law.^ 

It  is  thought  that  the  fact  that  all  the  names  in  the  jury 
box  prior  to  the  convening  of  the  court  ai'C  exhausted,  or  that 
the  other  contingencies,  enumerated  in  the  statute  *  as  pre- 
requisite to  the  right  of  the  judge  and  sheriff  to  prepare  the 
list,  actually  exist,  must  appear  affirmatively  upon  the  record, 
where  the  regularity  and  validity  of  a  conviction  for  murder 
is  in  question.^  It  is  said  in  State  v.  Collins  «  that  the  fact 
that,  in  a  murder  trial,  a  panel  of  forty  qualified  jurors  was 
procured  on  the  sixth,  when  the  cause  was  not  to  be  tried 
until  the  tenth,  constitutes  no  error.  In  the  absence  of  a 
showing  to  the  contrary,  it  will  always  be  presumed  that  the 
summoning  of  the  jurors  was  regular  ;7  and  where  there  are 
mistakes  in  the  process,  or  in  the  names  of  the  jurors,  the 
error  must  be  taken  advantage  of  before  conviction.^  It 
seems,  however,  that  a  slight  deviation  in  the  summoning  of 
the  jury,  in  point  of  time,  is  no  serious  error,  where  no  preju- 
dice to  the  defendant  is  shown ;  ^  nor  is  it  ground  for  reversal 

1  Cancemi  v.  Tcople,  18  N.  Y.   128  ^  Such  as  the  Idaho  Jury  Act. 
(1858-)  ;  s.c.  7  Abb.  (N.  Y.)  Pr.  271.  ''''  People    r.    Dunn,    1    Idaho,    75 

2  Morrison    v.   State,    84    Ala.    405     (1866). 

(1887)  ;  s.c.  4  So.  Rep.  402.  <>  86  Mo.  245  (1885). 

3  It  has  been  said  that  tlie  defend-  "  Rash  v.  State,  61  Ala.  89  (1878). 
ant  may  waive  the  qualification  or  ^  .Jewell  v.  Commonwealth,  22  Pa. 
the  legal  manner  of  selecting  jurors.  St.  94  (185?)). 

Cancemi   v.   People,    18    N.    Y.    136  ^  See  People  v.  Vance,  21  Cal.  400 

(1858).  (1863). 


390  HOMICIDE.  [chap.  XX. 

that  some  of  the  panel  are  excused  before  trial  without  the  de- 
fendant's consent.!  j^  ig  often  provided  that  a  special  venire 
may  be  ordered  in  a  capital  case  ;  '^  and  this  order  sliould  be 
shown  by  the  record.^^  Where  the  number  of  jurors  regularly 
summoned  has  been  exhausted  without  obtaining  a  jury,  it  is 
proper,  in  some  states,  to  order  the  officer  of  the  court  to 
sunnuon  talesmen  for  its  completion,"^  and  such  an  order,  even 
in  a  prosecution  for  a  capital  offence,  may  be  made  orally, 
and  need  not  be  entered  of  record.'^  But  talesmen  should  not 
be  called  until  all  the  jurors,  either  regularly  called  or  specially 
summoned,  have  been  disposed  of.  AVhere,  in  a  capital  case, 
the  number  of  regular  jurors  had  been  exhausted  witliout 
making  up  the  panel,  and  the  prisoner's  counsel  moved  that 
the  court  order  additional  regularly  appointed  jurors  to  be 
summoned  instead  of  appointing  talesmen,  it  was  held  that 
the  court  committed  no  eiTor  in  denying  the  motion.*^  And 
in  the  recent  case  of  Morrison  v.  State,'  under  a  statute  pro- 
viding that  on  a  trial  for  a  capital  offence,  the  names  of  the 
special  jurors  for  the  case  and  the  regular  jurors  in  attend- 
ance must  be  written  on  slips  of  paper,  and  all  placed  in  the 
same  box,  and  an  officer  designated  by  the  court  must  draw 
them  out,  one  by  one,  and  if  from  these  names  a  jury  be  not 
obtained,  the  court  must  direct  the  sheriff  to  summons  other 

1  People  r.  Lee,  17  Cal.  70  (1860).      State.  10  Ohio    St.  598   (1857);    s.c. 

2  See  .Jackson  v.  State,  77  Ala.  18     Law.  Insaii.  432. 

(1884) ;    State    v.    Murph,    1    Winst.  It  is  no  ground  of  challenge  to  the 

(N.  C.)  No.   1,  129   (1863);  Loeffner  array  in  a   capital  case,  that  it  docs 

V.  State,  10  Ohio  St.  598  (1857)  ;  s.c.  not  appear,  from  an  order  for  a  special 

Law.  Insan.  432 ;   Steagakl   v.   State,  venire  fucius,  tliat  it  was  made  in  the 

22  Tex.  App.  464  (1886)  ;  s.c.  9  Cr.  L.  case  of  the  prisoner.     It  is  sufficient 

Mao-.  515;  3  S.  W.  Rep.  771.  if  it  appears  that  it  was  made  at  the 

In  summoning  a  special  venire  for  term  at  wliicli  the  trial  was  had.    State 

a  capital  case,  which,  under  Alabama  r.  Murph,  1  Winst.  (N.  C.)  No.  1,  129 

Code,  §§  4872,  4874,  must  include  the  (1863). 

"regular  jury,"  or  "those  summoned  ^  gteagald   v.  State,  22  Tex.  App. 

on  the  regular  juries  for  the  week,"  464   (1886);  s.c.  9  Cr.  L.  Mag.  515; 

only  jurors  regularly  summoned  and  3  S.  W.  Kep.  771. 

in  attendance  are  meant, — not  tales-  •*  See    Morrison    v.   State,  84   Ala. 

men,  or  those    failing    to    attend,   or  405  (1887)  ;  s.c.  4  So.  Rep.  402;  State 

thQse  excused.     Jackson  v.  State,  77  r.  Allen,  47  Conn.  121  (1879). 

Ala.  18  (1884).  ""'  Morrison    v.    State,  84   Ala.   405 

A  vefiire  for    a   special    jury  in   a  (1887);  s.c.  4  So.  Rep,  402. 

capital  case  need  not  either  be  enti-  «  State    v.    Allen,    47    Conn.    121 

tied  as  of  the  case  pending,  nor  state  (1879). 

the  name    of    the    person    alleged    to  '  84    Ala.  405   (1887)  ;   s.c.  4    So. 

have    been    murdered.     Loeffner    v.  Rep.  402. 


SEC.  356.]  THE   JURY.  391 

jurors.  The  officers  who  had  charge  of  the  drawing  of  a  jury 
in  a  capital  case  failed  to  put  all  the  names  of  those  sum- 
moned as  jurors  in  the  box.  All  the  names  put  in  were 
drawn  out,  and  a  jury  obtained.  The  court  ordered  the  other 
names  to  be  put  in  the  box,  and  the  drawing  proceeded.  The 
defendant  insisted  that  talesmen  should  be  summoned,  which 
the  court  refused,  until  all  jurors  summoned  had  been  drawn, 
when  talesmen  were  summoned  to  complete  the  jury,  and  the 
appellate  court  held  that  the  refusal  of  the  trial  court  to 
grant  the  defendant's  request  was  proper. 

Sec.  355.  Qualifications  of  jurors.  —  The  qualifications 
prescribed  for  jurors  in  homicide  cases  are  the  same  as  are 
required  in  all  other  criminal  prosecutions.  They  must  be 
good  and  lawful  men,i  qualified  electors  of  the  county ,2  and 
must  not  have  served  on  the  grand  jury  which  found  the 
indictment.^  But  the  fact  that  a  person  summoned  as  a 
juror  has  been  peremptorily  challenged  by  the  defendant  at 
a  former  trial  of  the  indictment  does  not  disqualify  him.* 

It  is  said  in  State  v.  Kelly,^  that  on  a  trial  for  murder,  the 
court  may  excuse  a  juror  where  he  does  not  remember 
whether  he  was  on  the  grand  jury  that  found  the  indictment, 
and  the  court  cannot  find  the  record  which  would  give  in- 
formation as  to  whether  he  was  on  such  jury.  And  it  will 
be  presumed  that  the  search  after  tlie  record  was  sufficient, 
there  being  no  evidence  to  the  contrary. 

Sec.  356.  Same  —  Conviction  of  infamous  crime — Par- 
don. —  On  a  trial  for  murder,  a  motion  in  arrest  of  judgment, 
on  the  ground  that  one  of  the  jurors  had  been  convicted  of  a 
felony,  is  properly  overruled  if  it  appears  that  the  juror 
has  been  pardoned,  where  the  effect  of  the  pardon,  under  the 
constitution  in  force  when  it  was  granted,  was  not  merely  to 
release  the  offender  from  punishment,  but  in  legal  contempla- 
tion to  obliterate  the  offence  itself.'^ 

1  See  Potsdamer  v.  State,  17  Fla.  ^  gee   State   v.  Kelly,  1   Nev.  224 

895    (1880)  ;     Edward    v.    Common-  (I860). 

wealth,  78  Va.  89,  43  (1883)  ;  s.c.  8  *  Blackman    v.  State,  80   Ga.   785 

Va.  L.  J.  22;    Puryear   v.    Common-  (1888)  ;  s.c.  7  S.  E.  Rep.  020. 

wealth,  83  Va.  51   (1887);  s.c.  9  Cr.  ^1  Nev.  224  (1805). 

L,  Mag.  788.  e  Edward  r.  Commonwealth,  78  Va. 

2Costlyr.  State,  19  Ga.  614  (1856).  39,  43   (1883);    s.c.  8  Va.  L.  J.  22  ; 


392 


HOMICIDE. 


[chap.  XX, 


Sec.  357.    Same  —  When  objection  to  be  taken.  —  The 

objection  to  a  particular  juror  should  be  taken  when  he 
appears,  and  before  he  is  sworn  ;  ^  because  the  omission  to 
challenge  a  juror  at  the  time  he  is  impanelled  is  regarded  as  a 
waiver  of  any  objection  to  him,  and  his  competency  cannot, 
as  a  general  rule,  afterward  be  questioned  by  the  party 
making  such  omission.^  But  it  is  thought  to  be  within  the 
discretion  of  the  trial  court  to  allow  a  juror  to  be  further 
interrogated  even  after  he  has  been  sworn,^  and  if  cause  of 
disqualification  be  shown,  a  challenge  maybe  sustained.'^  But 
where  the  objection  is  not  taken  until  after  verdict,  the  verdict 
will  not  be  set  aside  and  a  new  trial  ordered  on  this  ground, 
unless  it  appears  from  the  whole  case  that  the  juror  was 
biased  against  the  prisoner,  who  therefore  did  not  have  a  fair 
and  impartial  trial.     It  was  so  held  in  S\veeney  v.  Baker.^ 

The  party  moving  for  a  new  trial,  on  the  ground  of  the 
disqualification  of  one  of  the  jurors,  must  show  to  the  satis- 
faction of  the  court  that  both  he  and  his  attorney  were  ignorant 


Puryear  i-.  Comiiionwealtli,  83  Va.  51 
(1887);  s.c.  9  Cr.  L.  Mag.  788;  1 
S.  E.  Rep.  512. 

1  See  People  v.  Dolan,  51  Mich. 
610  (1883);  s.c.  17  N.  W.  Rep.  78; 
State  r.  Dumphey,  4  Minn.  438  (18G0)  ; 
Poindexter  v.  Commonwealth,  33 
Gratt.  (Va.)  766  (1880)  ;  s.c.  4  Va. 
L.  J.  432  ;  Reg.  v.  Kerr,  3  Leg.  News, 
299  (1880). 

2  Keener  v.  State,  18  Ga.  194  (1855)  ; 
s.c.  63  Am.  Dec.  269.  See  Parmele 
V.  Guthery,2  Root  (Conn.)  185  (1795); 
s.c.  1  Am.  Dec.  65  ;  Glover  i-.  Wool- 
sey.  Dud.  (Ga.)  85  (1832)  ;  Hardy  v. 
Sprowle,  32  Me.  310  (1850)  ;  Com- 
monicealth  v.  Knapp,  27  Mass.  (10 
Pick.)  477  (18^0)  ;  s.c  20  Am.  Dec. 
534;  Jeffries  v.  Randall,  14  Mass. 
206  (1817)  ;  Gillespie  7-.  State,  8 
Yerg.  (Tenn.)  507  (1835);  s.c.  29 
Am.  Dec.  137. 

The  court  say  in  Keener  v.  State, 
18  Ga.  194  (1855);  s.c.  63  Am.  Dec. 
269,271,  that  "the  doctrine  under- 
went a  tlioroiiLrh  investigation  by  the 
judges  in  convention  in  Glover  r. 
Woolsey,  Dud.  (Ga.)  85  (18.32).  It 
is  true  that  was  an  action  of  assump- 


sit, but  the  reasoning  of  the  conven- 
tion, as  well  as  the  authorities  cited, 
apply  to  criminal  as  well  as  civil 
causes.  It  is  there  laid  down  as  a 
well-settled  rule  that  an  omission  to 
challenge  a  juror  before  trial  is  a 
waiver  of  the  objection  to  him ;  and 
that  it  would  be  most  unreasonable 
to  allow  a  party  the  benefit  of  a  ver- 
dict, if  favorable  to  him,  and  the 
benefit  of  a  new  trial  on  account  of 
the  objection  if  the  verdict  should  be 
adverse." 

3  See  People  v.  Damon,  13  Wend. 
(N.  Y.)  351  (1835)  ;  Bristow  v.  Com- 
monwealth, 15  Gratt.  (Va.)  646 
(1859)  ;  Dilworth  ;•.  Commonwealth, 
12  Gratt.  (Va.)  689  (1855)  ;  .'^.c.  05 
Am.  Dec.  264;  Bennet  v.  State,  24 
Wis.  59  (1809). 

•»  See  McGuire  r.  State,  37  Miss. 
369  (1859)  ;  People  v.  Damon,  13 
Wend.  (N.  Y.)  351  (1835). 

•'■'  1 3  W.  Va .  228  (1 878) .  See  State 
V.  McDonald,  9  W.  Va.  465  (1876); 
citing  Bristow's  Case,  supra.  See 
Parmele  v.  Guthery,  2  Root  (Conn.) 
185  (1795)  ;  s.c.  1  Am.  Dec.  65. 


SEC.  358.]  THE  JURY.  393 

of  the  disqualification  of  the  trial.^  Thus,  if  the  party  knew 
the  facts,  bat  did  not  know  that  the  law  made  them  a  dis- 
qualification;  "-^  or  if  he  knew  that  a  juror  had  formed  and 
expressed  an  opinion,  but  did  not  know  it  was  against  him  ;  ^ 
or  if  the  facts  constituting  the  disqualification  were  known 
to  counsel,  but  were  forgotten  at  the  time  of  the  trial,^  a 
new  trial  will  not  be  granted. 

It  is  said  in  Costly  v.  State  ^  that  the  objection  that  a  juror 
is  disqualified  to  serve  because  a  non-resident  in  the  county, 
must,  to  be  available,  be  taken  before  he  is  sworn,  even  in  a 
capital  offence."^  And  by  the  supreme  court  of  Fhnida  in 
Potsdamer  v.  State,^  that  it  is  too  late  to  raise  the  objection 
that  the  record  does  not  show  that  the  petit  jurors  were  good 
and  lawful  men,  for  the  first  time  in  the  supreme  court. 
And  in  State  v.  Quarrel  ^  it  is  said  that  if  an  alien  is  drawn 
and  impanelled  on  the  jury,  it  is  a  good  cause  of  challenge 
before  trial ;  but  if  allowed  to  be  SAVorn  by  the  prisoner,  it  is 
too  late  after  trial  and  conviction  to  make  it  a  ground  for  a 
new  trial.^  But  it  is  held  by  the  supreme  court  of  JNIichigan 
in  the  case  of  Johr  v.  People  '^^  that  an  alien  being  on  a  jury 
in  a  trial  for  felony  vitiates  the  judgment. 

Sec.  358.  Defendant's  list.  —  Where  the  indictment  is 
for  a  capital  offence  the  law  sometimes  gives  the  defendant 
the  right  to  have  served  upon  him,  before  trial,  a  list  of  the 
jurors   summoned.ii     This  right,  however,  depends  entirely 

1  State    V.   Tullcr,   34    Conn.    280  «  2  Bay  (S.  C.)  150  (1798)  ;  s.c.  1 

(1867)  ;    Morrison    i:    IMcKinnon,    12  Am.  Dec.  OoZ. 

Fla.  552  (186!)) ;   Anderson  v.  State,  ^  See  State  v.  Vogel,  22  Wis.  471 

14  Ga.  70!l  (1854)  ;  Kent  v.  Cliarles-  (1868). 

town,  68  Mass.  (2  Gray)  281  (1854)  ;  ^>  26  Mieh.  427  (1873). 

Eastman    v.   W^ulit,  4    Ohio    St.    156  "  Kenan  y  State,  73  Aln.  15  (1882)  ; 

(1854).                 '^  Aikin   v.  State,  35   Ala.  3i)9  (1860); 

^  Dolloff  V.  Stimpson,  33  Me.  546  State  *•.  Ward,  14  La.  An.  684  (1859)  ; 

(1852).  State  v.  Bangor,  30  Me.  341  (1849); 

3  Bell  V.  Howard,  4  Litt.  (Kv.)  117  State  i:  Brooks,  30  N.  J.  L.  (1  Vr.) 

(1823).                                         '  356  (1863).     See   Ala.   Code   1876,  § 

+  Cannon    v.   Bullock,  26  Ga.  431  4782;    La.    Bev.    Stat.    1876,    §    992; 

(1858).  1879,  c.  55,  §  1;  Me.  Rev.   Stat.  1871, 

il9Ga.614  (1856).  e.  134,  §  14;    Miss.  Rev.  Code  1880, 

6  Costly     1-.     State,     19     Ga.    614  §  3057  ;  Mo.  Rev.  Stat.  1879,  §§  1900, 

(1856).  1904;   N.   H.  Gen.  Stat.   1867,  e.  243, 

'  17  Fla.  895  (1880).  §    1 ;  Ohio  Rev.  Stat.  1880,  §§  7271, 

7273. 


394 


HOMICIDE. 


[chap.  XX. 


upon  statute,^  no  such  privilege  existing  at  common  law. 
And  it  can  only  be  claimed  under  the  statute  and  in  cases 
which  fall  within  the  statute.^  But  under  such  a  statute  the 
defendant  is  not  entitled  to  be  served  before  trial  with  a  list 
of  the  talesmen.^  The  right  to  a  copy  of  the  venire  under 
such  statutes  is  a  valuable  one  of  which  the  defendant  cannot 
be  deprived  without  his  consent ;  ^  but  which  he  will  be 
regarded  as  having  waived  by  a  failure  to  demand  it.^ 

The  object  of  conferring  this  right  upon  the  accused  is  to 
enable  him  better  to  exercise  his  right  of  challenge ;  and, 
hence,  this  part  of  the  proceedings  should  be  carried  on  with 
that  object  in  view,  and  the  service  of  any  list  which  will 
accomplish  this  purpose  is  suihcient.*"  The  statutes  of  the 
different  states   on  this   subject  vary  considerably  in  their 


V.    State,    45    Ala.    21 
V.  Dowling,  3  Cox  C.  C. 

Bangor,    30    Me.    341 

Buckner,   25    Mo.    167 


1  See  Driskill  v.  State,  45  Ala.  21 
(1871)  ;  Keg.  v.  Dowling,  3  Cox  C.  C. 
509  (1848). 

2  Driskill 
(1871);  Keg 
509  (1848). 

3  State    V, 
(1849). 

*  State    V. 
(1857). 

5  State  V.  Cook,  20  La.  An.  145 
(1868)  ;  State  v.  Jackson,  12  La.  An. 
679  (1856)  ;  State  v.  Hernandez,  4  La. 
An.  379  (1849);  State  v.  Klinger,  46 
Mo.  224,  227  (1870)  ;  State  v.  Waters, 
I  Mo.  App.  7  (1876)  ;  s.c.  62  Mo.  196; 
State  V.  Fisher,  2  Nott  &  McC.  (S.  C.) 
261,  264  (1820)  ;  Craft  v.  Common- 
wealth, 24  Gratt.  (Va.)  002,  609 
(1873) ;  Peterson  v.  State,  45  Wis. 
535  (1878). 

•^  It  not  appearing  that  the  defend- 
ant had  been  misled  by  the  venire, 
which  only  gave  the  initials  of  the 
Ciiristian  names,  nor  that  the  jurors 
were  not  customarily  known  by  their 
initials,  the  venire  was  held  good  in 
Aikin  v.  State,  35  Ala.  399  (1860). 
In  this  case  the  sheriff,  when  he  served 
the  venire  upon  the  prisoner,  told  him 
that  it  was  "  a  list  of  the  jury  sum- 
moned to  try  his  case  for  the  murder 
of  A.,  at  the  present  term  of  the  court," 
and  read  the  list  to  him.     The  court 


held  that  it  was  not  fatal  that  the  list 
was  headed  "jurors  summoned  for  M. 
instead  of  jurors  summoned  to  try 
M." 

A  list  of  jurors,  headed  "list  of 
jurors  for  the  third  and  fourth  weeks 
of  the  October  term  of  the  district 
court  of  the  parish  of  Caddo,"  duly 
served  on  the  prisoner,  was  held  to  be 
a  sufficient  compliance  with  law  in 
State  V.  Ward,  14  La.  An.  684  (1859). 

A  list  of  jurors  served  on  a  defend- 
ant indicted  for  murder,  at  the  same 
time  with  a  copy  of  the  indictment, 
having  on  it  the  words  "petit  jury, 
April  term,  1863,"  followed  by  forty- 
eight  names,  with  abbreviations  of 
the  names  of  the  places  of  residence, 
which,  however,  could  be  understood 
as  well  as  if  there  were  no  abbrevia- 
tions, is  sufficient.  And  it  makes  no 
difference  that  there  is  a  cross  between 
the  two  parts  of  the  name  of  a  juror. 
State  V.  Brooks,  30  N.  J.  L.  (1  Vr.) 
356  (1863). 

While  proceedings  are  in  ^firri,  tlie 
court  may  permit  the  sheriff  to  amend 
the  list  of  jurors  served  on  defendant 
so  as  to  correspond  to  the  title  of  the 
cause,  and  to  correct  the  return  of 
service  so  as  to  correctl\'  show  service 
on  defendant.  Kenan  r.  State,  73  Ala. 
15  (1882). 


SEC.  360.]  THE  JURY.  395 

terms,  some  of  them  providing  for  the  service  of  a  copy  of 
the  panel  or  array  assembled  to  serve  generally  for  the  term, 
and  others  for  a  copy  of  the  special  panel  assembled  to  serve 
in  the  particular  case  ;  some  of  them  providing  for  the 
service  of  the  list  of  those  who  have  been  actually  sum- 
nioned,^  others  for  the  service  of  a  list  of  those  who  have  not 
been  drawn.  Judge  Thompson  says  ^  that  under  the  former 
statutes  it  is  not  sufficient  to  serve  a  list  of  those  who  have 
been  drawn  merely ;  ^  nor  under  the  latter  will  the  statutory 
right  be  accorded  by  the  service  of  a  long  list  of  persons, 
most  of  whom,  to  the  knowledge  of  the  officer,  have  been 
excused.^ 

Sec.  359.  Challenge  for  cause  —  Implied  bias.  —  A  juror 
may  be  challenged  for  implied  bias  in  prosecutions  for  homi- 
cide, as  well  as  in  other  cases,  if  within  the  prohibited  degree 
of  consanguinity  or  affinity  to  the  defendant  or  the  deceased ; 
and  if  it  be  found  that  a  person  so  related  has  served  upon  the 
jury,  a  verdict  of  guilty  will  be  reversed.^  It  has  been  held 
that  ignorance  as  to  the  relationship  is  cause  to  treat  service 
as  a  juror  in  the  same  manner  as  if  the  juryman  had  not  been 
so  related.  Thus  it  is  said  by  the  supreme  court  of  Pennsyl- 
vania in  Traviss  v.  Commonwealth^  that  a  new  trial  for 
murder  will  not  be  granted  because  one  of  the  jurors  was 
second  cousin  to  the  deceased,  of  which  relationship  he 
was  wholly  ignorant. 

Sec.  360.  Same  —  Actual  bias.  —  A  juror  may  be  chal- 
lenged for  actual  bias  when  it  is  fairly  shown  that  he  has  a 
decided  opinion  as  to  the  defendant's  guilt  or  innocence, 
which  would  probably  affect  his  verdict ;  but  the  mere  fact 

1  Murray  i-.  State,  21  Tex.  App.  v.  Congdon,  14  E.  I.  458  (1884)  ;  Par- 
466  (1880);  s.c.  8  S.  W.  Rep.  104;  rish  v.  State,  12  Lea  (Tenn.)  655 
Pascli.  Dig.  Tex.  Stat.,  art.  3022  ;  Tex.  (1883).  A  verdict  of  manslaughter 
Code  Crim.  Proc,  art.  611.  will  be  reversed  if  a  juror  related  to 

2  See  1  Thomp.  on  Trials,  16.  the  defendant  within   the  prohibited 

3  Drake  v.  State,  5  Tex.  App.  649  degree  has  been  passed  as  competent. 
(1879)  ;  Harrison  r.  State,  3  Tex.  Parrish  v.  State,  12  Lea  (Tcnn.)  655 
App.  558  (1878).  (1883).     Consanguinity   in   the  sixth 

*  State  V.  Howell,  3  La.  An.  50,  52  degree  between  a  juror  and  one  tried 

(1848).     See  State  v.  Guidry,  28  La.  for   murder   will    not    necessarily   be 

An.  631  (1876).  deemed  ground  for  a  new  trial.    State 

5  See  State  r.  Hanlev,  34  Minn.  4-30  v.  Congdon,  14  R.  I.  458  (1884). 
(1886)  ;  s.c.  26  N.  W.  Rep.  397  ;  State  ^  iqq  Pa.  St.  597  (1884). 


396  HOMICIDE.  [chap.  XX. 

that  the  juror  has  formed  or  expressed  an  opinion  not  posi- 
tive and  based  upon  rumor,  does  not  disqualify  him,  where 
it  is  his  opinion  that  he  can  try  the  case  impartially  and  fairly, 
according  to  the  law  and  the  evidence  as  received  by  the  jury, 
without  regard  to,  and  notwithstanding  what  he  has  read  or 
heard.^  Thus  in  Holt  v.  People,^  which  was  a  trial  for  mur- 
der, a  juror,  examined  as  to  his  competency,  said,  "  I  have 
formed  a  partial  opinion  as  to  the  guilt  or  innocence  of  the 
defendant  from  rumors  heard  in  the  street,  but  not  a  positive 
opinion."  This  was  held  not  to  be  such  an  opinion  as  would 
disqualify  him.  Where  a  juror  admits  that  he  had  formed 
an  impression  from  what  he  had  read,  but  it  was  not  what  he 
would  call  a  fixed  opinion,  the  court  held  that  the  question 
as  to  what  he  meant  by  the  impression,  "  whether  it  was  the 
same  thing  as  an  opinion,"  was  properly  overruled,  and  that 
the  juror  was  competent.^ 

It  is  not  ground  for  a  new  trial  that  a  juror  who  had  stated 
on  his  voir  dire  that  he  had  no  prejudice  against  the  defendant, 
and  could  render  an  impartial  verdict,  was  subsequently  dis- 
covered to  have  stated  before  the  trial  that  he  believed  the  de- 
fendant guilty,  because  two  juries  had  found  him  guilty,  as 
the  two  statements  are  not  inconsistent.*  In  the  case  of  Simms 
V.  State  ^  one  convicted  of  murder  moved  for  a  new  trial  on 
the  ground  that  one  of  the  jurors,  before  being  impanelled, 
said  that  if  put  on  the  jury  he  would  hang  the  defendant. 
By  a  counter-showing  it  appeared  that  the  juror's  remark  was 
a  mere  device  to  avoid  service  on  the  jury,  and  that  he  had 
no  actual  bias  against  the  prisoner,  and  the  motion  was  prop- 

1  S/?/esv.Peo/)/e  (Anarchists' Case),  wealth    (Pa.),    10    Or.    L.    Mag.   409 

122  III.  1  (1887)  ;  s.c.  3  Am.  St.  Rep.  (1888)  ;  s.c.  12  Atl.  Rep.  103;  Stea- 

320;  9   Or.  L.  Mag.  829  ;    (5  Am.  Or.  gakl  c.  State,  22  Tex.  App.  404  (1880)  ; 

Rep.  570;  12  N.  E.  Rep.  805;  17  N.  E.  s.c.  9  Cr.  L.  Mag.  515  ;  3  S.  W.  Rep. 

Rep.  898;  State  t:  Vatter,  71   Iowa,  771.     See  People  v.  Woods,  29    Cal. 

557  (1887);  s.c.  32  N.  W.  Rep.  500;  035   (1800);    Blackman  v.   State,    80 

State  V.  Sopher,  70  Iowa,  494  (1880)  ;  Ga.  785  (1888)  ;  s.c.  7  S.  E.  Rep.02() ; 

s.c.  9  Cr.  L.  Mag.  218  ;  30  N.  W.  Rep.  Simms  v.  State,  8  Tex.  App.230  (1880). 

917  ;   Roy  v.  State,  2  Kan.  405  (1804)  ;  2  1.3  Mich.  224  (1805). 

Holt  V.  People,  13  Mich.  224  (1805)  ;  3  Hall  v.  Commonwealth  (Pa.),  10 

Parker  v.  State,  55  Miss.  414  (1877)  ;  Cr.  E.  Mag.  409  (1888)  ;   s.c.  12  Atl. 

Murpiiy  V.  State,  15  Neb.  383  (1884)  ;  Rep.  103. 

s.c.    19    N.    W.    Rep.   489;    State    1:  «  Blackman   v.    State,  80   Ga.  785 

Saunders,   14  Oreg.  300  (1880)  ;    s.c.  (1888)  :  s.c.  7  S.  E.  Rep.  020. 

12   Pac.   Rep.  441  ;   Hall  i:  Coiiniiou-  ^  8  Tex.  App.  230  (1880). 


SEC.  361.]  THE   JUEY.  397 

eiiy  overruled.  In  the  case  of  Steagakl  v.  State  ^  a  proposed 
juror  admitted  that  he  had  formed  an  opinion  respecting  the 
defendant's  guilt  or  innocence,  and  that  it  would  require  evi- 
dence to  remove  it.  He  stated  further  that  the  opinion  was 
formed  on  hearsay,  which  he  valued  little,  and  that  he  could 
render  an  impartial  verdict  upon  the  law  and  the  evidence. 
The  juror  was  held  to  be  qualified  and  not  subject  to  chal- 
lenge for  cause. 

Sec.  361.  Same  —  Prejudice  against  capital  punisluiient. 
—  Where,  in  a  prosecution  for  a  homicide  the  punishment 
for  which  is  capital,  a  juror,  on  his  voir  dire  examination, 
states  that  he  has  conscientious  scruples  against  capital  pun- 
ishment, which  would  probably  influence  him  in  returning  a 
verdict,  he  may  be  challenged  for  cause  by  the  prosecution,'^ 
even  though  he  may  declare  that  he  can  try  the  case  fairly, 
and  carry  out  the  law ;  his  opposition  being  to  the  law  pre- 
scribing the  punishment,  and  not  to  its  fulfilment  by  the 
courts.  Thus  on  the  trial  of  an  indictment  for  murder,  a 
juror  answered  on  his  voir  dire  that  he  regarded  the  law 
inflicting  a  death  penalty  as  wrong,  but  thought  the  jury 
should  carry  out  the  law;  that  he  had  conscientious  scruples 
aside  from  the  law,  but  felt  free  to  carry  out  the  law ;  that 
he  had  for  years  thought  the  law  was  not  just  right,  and  that 
leaving  out  the  law,  he  had  scruples.  The  court  held, 
that  although  the  case  was  not  within  the  letter  of  the  stat- 
ute prescribing  as  cause  for  challenge  such  conscientious 
opinions  as  woidd  preclude  affixing  the  death  penalty  in  a 
capital  case,^  the  discharge  of  the  juror  against  the  defend- 
ant's objection  was  not  ground  for  reversal  of  a  conviction.* 

But  in  all  those  cases  where  the  indictment  is  for  homicide 
of  a  grade  not  capital,  the  opinions  of  a  juror  as  to  the  death 
penalty  are  immaterial.^ 

122  Tex.  A  pp.  404   (ISSfi)  ;  s.c.  9  each    had   answered    that   he  "would 

Cr.  L.  Mag.  515  ;  ?>  S.  W.  Rep.  771.  not  like  for  a  man  to  be  hanged,"  was 

-  Murpliy    V.   State,    37    Ala.    142  held  to  be  error.     Smith  v.  State,  55 

(1801);  State   v.  Jewell,  33  Me.  583  Miss.  410  (1877). 
(1851).     See  Smith  v.  State,  55  Miss.  3  in,i.  Rev.  Stat.  1881,  §  1791. 

410  (1877).     On  a  trial  for  murder  a  '^  Stevenson  v.  State,  110  Ind.  358 

refusal  to  comply  with  the  request  of  (1880);    s.c.    59    Am.    Rep.    210;    11 

the  accused    further  to  examine  two  N.  E.  Rep.  300. 

meTiibers  of  the  special  venire  touch-  ^  Finn  i'.  State,  5  Ind.  400  (1854). 

ing  their  conscientious  scruples,  after 


398  HOMICIDE.  [chap.  XX. 

Sec.  362.  Same  —  Prejudice  against  defence  of  insanity. 

—  It  may  sometimes  be  cause  for  challenge  that  a  juror  is 
prejudiced  against  the  defence  of  insanity ;  but  not  where  he 
states  on  his  voir  dire  examination  that  he  can  try  the  cause 
fairly  and  impartially  according  to  the  law  and  the  evidence, 
under  such  a  defence.  Thus  in  Hall  v.  Commonwealth,^  a 
juror  having  on  his  voir  dire  declared  that  he  had  conscien- 
tious scruples  against  a  defence  on  the  ground  of  insanity, 
it  was  held  that  it  was  not  error  to  exclude  defendant's 
questions :  "■  Whether  under  any  circumstances,  in  his  capac- 
ity as  a  juror,  he  thinks  it  Avould  be  possible  to  set  up  such 
a  defence,  and  if  he  would  consider  it  a  valid  defence? 
Whether  he  could  conceive  of  any  case  in  which  there  could 
be  such  a  defence,  which  he  would  entertain  as  a  juror?" 

Sec.  363.    Same — Prejudice    against    "anarchism."  — 

Prejudice  against  "  anarchism  "  cannot  disqualify  a  juror  upon 
the  trial  of  an  indictment  of  an  anarchist  for  murder,  result- 
ing from  an  anarchistic  conspiracy ;  for  anarchy  is  crime, 
and  prejudice  against  crime  is  not  only  proper  in  a  juror,  but 
laudable.2  In  the  famous  Anarchists'  Case^  the  court  say: 
"  The  juror  .  .  .  further  stated  that  he  had  a  prejudice 
against  socialists,  communists,  and  anarchists.  This  did  not 
disqualify  him  from  sitting  as  a  juror.  If  the  theories  of  the 
anarchist  should  be  carried  into  practical  effect,  the}^  would 
involve  the  destruction  of  all  law  and  government.  Law  and 
government  cannot  be  abolished  without  revolution,  blood- 
shed, and  murder.  The  socialist  or  communist,  if  he  at- 
tempted to  put  into  practical  operation  his  doctrine  of  a 
community  of  property,  would  destroy  individual  rights  in 
property.  Practically  considered,  the  idea  of  taking  a  man's 
property  from  him  without  his  consent,  for  the  purpose  of 
putting  it  into  a  common  fund  for  the  benefit  of  the  commu- 
nity at  large,  involves  the  commission  of  theft  and  robber}-. 
Therefore  the  prejudice  which  the  ordhiary  citizen,  wlio 
looks  at  things  from  a  practical  standpoint,  would  have 
aganist  anarchism  and  communism,  would  be  nothing  more 

1  10  Cr.   L.  Mag.  409   (Pa.)  1888;  St.  Rep.  020;   9  Cr.  L.  Mag.  829;  G 
12  Atl.  Rep.  1G3.  Am.  Cr.  Rep.  570  ;  12  N.  E.  Rep.  865 ; 

2  See  Spies  v.  People  (Anarchists'  17  N.  E.  Rep.  898. 
Case),  122  111.  1   (1887)  ;  s.c.  3  Am. 


SEC.  365.]  THE  JURY.  399 

than  a  prejudice  against  crime.  In  Winnesheik  Insurance 
Co.  V.  Scliueller,^  Ave  said:  'A  man  may  have  a  prejudice 
against  crime,  against  a  mean  action,  against  dishonesty,  and 
still  be  a  competent  juror.  This  is  proper,  and  such  prejudice 
will  never  force  a  jury  to  prejudice  an  innocent  and  honest 
man.'  In  Robinson  v.  Randall,'^  we  again  said :  '  The  mere 
fact,  therefore,  that  a  juror  may  have  a  prejudice  against 
crime  does  not  disqualify  him  as  a  juror.  A  juror  may  be 
prejudiced  against  larceny,  or  burglary,  or  murder,  and  yet 
such  fact  would  not  in  the  least  disqualify  him  from  sitting 
upon  a  jury  to  try  some  person  who  might  be  charged  with 
one  of  these  crimes.'  " 

Sec.  304.  Same — Prejudice  ag'sviiist  circumstantial  evi- 
dence.—  It  is  good  cause  for  challenge  that  a  juror  states 
that  he  would  not  convict  a  person  accused  of  murder  upon 
circumstantial  evidence  alone.^ 

Sec.  365.  Same  —  Rij'iit  to  clialleng^e  —  Reopening 
right.  —  In  the  case  of  Reg.  v.  Coulter,*  upon  a  trial  for 
murder,  after  the  usual  notice  of  right  of  challenge,  two 
jurymen  were  sworn  without  challenge.  J.  H.  was  then 
called,  and  a  person  came  forward  and  was  sworn.  Others 
were  called  and  challenged  ;  and  after  another  Avas  called 
and  SAvorn  Avithout  challenge,  the  prisoner's  counsel  objected 
to  J.  H.,  as  he  Avas  a  Avitness  in  the  case.  Upon  inquiry  he 
Avas  found  not  to  be  the  person  intended  to  be  called  on  the 
jury,  being  not  only  a  Avitness,  but  not  a  resident  in  the 
counties,  and  therefore  not  qualified  as  a  juryman.  Upon 
consent  of  counsel  for  the  croAvn  and  prisoner,  he  Avas  alloAved 
to  retire,  and  others  Avere  called  and  sworn,  the  prisoner 
exercising  the  riglit  to  challenge,  till  the  jury  Avas  chosen. 
After  conviction,  upon  motion  for  a  new  trial,  the  court  held 
(1)  that  J.  H.,  though  improperly  SAVorn,  AA'as  legally  dis- 
charged from  tlie  jury ;  (2)  that  the  right  of  challenge  as  to 
those  previously  SAvorn  Avas  not  thereby  re-opened,  their 
re-swearing  not  being  rendered  necessary ;  and  (3)  that  the 
prisoner  Avas  properly  tried  by  the  tAA^elve,  although  thirteen 
Avere  sworn  to  try  him. 

1  60  111.  465  (1871).  8  State  v.  Leobe,  89  Mo.  247  (1886); 

2  82  111.  521  (1876).  s.c.  1  S.  W.  Rep.  288. 

4  13  Up.  Can.  C.  P.  299. 


400  HOMICIDE.  [chap.  XX. 

In  Whalen  v.  Reg.,^  on  the  trial  of  an  indictment  for  mur- 
der, the  prisoner  desired  to  challenge  one  S.,  one  of  the 
jurors  called,  for  favor,  alleging  sufficient  cause.  The  judge 
ruled  that  he  must  first  exhaust  his  peremptory  challenges, 
and  this  point  was  raised  by  plea  and  demurrer,  and  formally 
decided.  The  entry  on  the  record  then  was,  that  in  defer- 
ence to  the  judgment,  the  challenge  was  taken  and  treated  as 
a  peremptory  challenge  for  and  on  behalf  of  the  prisoner. 
Afterwards,  having  exhausted  twenty  challenges,  including 
S.,  he  claimed  to  challenge  peremptorily  one  H.,  contending 
that  by  the  erroneous  ruling,  he  had  been  compelled  to  chal- 
lenge S.  peremptorily,  and  should  not  be  obliged  to  count  him 
as  one  of  the  twenty.  This  was  also  entered  of  record  and 
decided  against  him.  The  court  held  that  the  prisoner  was 
entitled  to  challenge  for  cause  before  exhausting  his  peremp- 
tory challenges ;  that  error  would  lie  for  the  refusal  of  this 
right ;  and  that  had  S.  been  sworn,  there  must  have  been  a 
venire  de  novo;  also  that  by  the  peremptory  challenge  of  S., 
which  excluded  him  from  the  jury,  the  first  ground  of  error 
was  removed ;  and  that  error  on  the  second  challenge  could 
not  be  supported,  for  the  prisoner  had  in  fact  had  twenty 
peremptory  challenges,  and  the  peremptory  challenge  of  S., 
l^eing  in  deference  to  the  ruling  of  the  judge,  did  not  make 
it  the  less  a  peremj^tory  challenge. 

Sec.  306.  Peremptory  challenj?es.  —  At  common  law  the 
number  of  jurors  whom  the  defendant  was  permitted  to  chal- 
lenge peremptorily  in  cases  of  felony  was  thirty-five,^  but 
the  number  allowed  is  now  usually  prescribed  by  statute, 
and  it  is  generally  the  same  in  all  homicide  cases  as  it  is  in 
other  prosecutions  for  felony ;  ^  but  a  larger  number  of  chal- 
lenges is  sometimes  allowed  in  trials  for  capital  offences.^ 

1  28  Up.  Can.  Q.  B.  2  ;  s.r.  affirmed  (1811);  Gray  v.  Reg.,  11  CI.  &  F.  427, 
28  Up.  Can.  Q.  B.  108.  459  (1844). 

2  United  States  v.  Johns,  4  U.  S.  ^  gee  Minims  v.  State,  10  Ohio  St. 
(4  Dall.)   412    (1800)  ;    bk.  1   L.  ed.  221  (1805). 

888;    Co.  Litt.  15Gb;    2    Hale   P.  C.  *  See  Dorgan  r.  State,  72  Ala.  173 

208;  2  Haxvk  P.  C,  c.  43,  §  7.     See  (1882)  ;    Noles  v.  State,  24  Ala.  672 

State  V.  Cadwell,  1  Jones    (N.  C.)  L.  (1854)  ;  People  v.  O'Neil,  61  Cal.  435 

289  (1854)  ;   United  States  v.  Black,  (1882)  ;  People  v.  Harris,  61  Cal.  186 

2  Cr.  C.  C.  195  (1819)  ;  United  States  (1882)  ;    People   v.    Clough,   59    Cal. 

V.  Lambert,  2  Cr.  C.  C.  137   (1817)  ;  438  (1881)  ;  Beery  v.  United    States, 

United  States  v.  Craig,  2  Cr.  C.  C.  36  2  Colo.  186  (1873)  ;  State  v.  Neuner, 


SEC.  367.] 


THE   JURY. 


401 


In  those  cases  where  the  accused  may  be  convicted  under 
the  indictment  of  murder  in  the  first  degree,  he  is  entitled  to 
the  number  of  peremptory  challenges  allowed  in  prosecutions 
for  that  offence  ;  and  it  is,  therefore,  no  objection  to  the 
form  of  indictment  prescribed  by  the  statute,^  that  it  does 
not  distinguish  between  the  different  degrees  of  murder.^ 

Sec.  367.  Swearing  the  jury-  —  In  all  homicide  cases  the 
jury  must  be  sworn  in  the  presence  of  the  accused ;  ^  they 
must  be  sworn  for  the  particular  case  to  be  tried,*  and  where 
joint  defendants  are  awarded  separate  trials,  after  the  jury 
has  been  sworn,  they  must  be  re-sworn.^  Where  a  defendant 
is  indicted  by  several  aliases  and  on  the  trial  his  true  name  is 


49  Conn.  2Z2  (1881)  ;  State  r.  Chad- 
bourne,  74  INIe.  506  (1883)  ;  State  v. 
Smith,  67  Me.  328  (1878)  ;  Stewart 
V.  State,  50  jMiss.  587  (1874)  ;  Krem- 
ling  V.  Lallman,  16  Neb.  280  (1884)  ; 
State  V.  McClear,  11  Nev.  39  (1876)  ; 
State  r.  Drake,  59  N.  H.  21  (1879); 
Fowler  v.  State,  8  Baxt.  (Tenn.)  573 
(1876)  ;  Smith  v.  State,  8  Lea  (Tenn.) 
386  (1881)  ;  Rounds  v.  State,  57  Wis. 
45  (1883)  ;  s.c.  14  N.  W.  Rep.  865 ; 
United  States  v.  Shackleford,  59  U.  S. 
(18  How.)  588  (1855)  ;  bk.  15  L.  ed. 
495;  United  States  v.  Tallman,  10 
Blatehf.  C.  C.  21  (1872)  ;  United 
States  V.  Cottingham,  2  Blatchf.  C.  C. 
470  (1852)  ;  United  States  r.  Reed,  2 
Blatclif.  C.  C.  435  (1852);  United 
States  V.  Coppersmith,  4  Fed.  Rep. 
198  (1880)  ;  s.c.  2  Flipp.  C.  C.  546 ; 
United  States  v.  Devlin,  7  Int.  Rev. 
Rec.   94;    Ala.    Code    1876,  §§   4879, 

4880;  Ark.  Dig.  1874,  §§  1912,  1913; 

Cal.  Pen.  Code,  §  1070  ;    Colo.   Laws 

1879,  p.  363  ;  Del.  Laws  1874,  c.  133, 

§  16  ;  Fla.  Bush  Dig.,  p.  576  ;  111.  Rev. 

Stat.  1880,  c.  38,  §  432  ;    Ind.  2  Rev. 

Stat.    1876,  p.  393,  §§   81,  82  ;    Iowa 

Miller's  Rev.  Code  1880,  §  4413;  Kan. 

Comp.    Laws    1879,    §§   4,   690,   691; 

Ky.  Bull  Cr.  Code,  p.  41,  §§  203,  204 ; 

La.  Rev.  Stat.  1876,  §§  997,  998;  Me. 

Rev.    Stat.    1871,   c.    1.34,  §  12 ;    Md. 

Rev.  Code   1878,  p.  563,  §  18  ;  Mass. 

Gen.    Stat.    1860,  c.    172,    §    4;    Acts 

1875,    c.  168,    §  1  ;    Mich.    Comp.    L. 

1871,  §  7951  ;  Minn.  Stat,  at  L.  1873, 

26 


p.  1055,  §  231 ;  IMiss.  Rev.  Code  1880, 
§  3076  ;  Mo.  Rev.  Stat.  1879,  §§  1900, 
1902;  Neb.  Gen.  Stat.  826,  §  467; 
Nev.  Comp.  L.  1873,  §  1900 ;  N.  H. 
Gen.  Stat.  1867,  p.  493,  §§  8,  9  ;  N.  J. 
Rev.  1877,  p.  280,  §  71 ;  p.  530,  §  40 ; 
p.  531,  §  41 ;  N.  Y.  Rev.  Stat.  (6th 
ed.)  p.  1029,  §  9  cf  seq. ;  Code  Cr. 
Proe.  §  370;  N.  C.  Batt.  Rev.,  p.  338, 
§  77;  Ohio  Rev.  Stat.  1880,  §§  7272, 
7274,  7277;  Oreg.  Gen.  Laws  1872 
(Crim.  Code)  §  155 ;  Pa.  Bright  Purd. 
Dig.  §§  39,  40 ;  R.  I.  Gen.  Stat.  1872, 
p.  434,  §  34 ;  S.  C.  Rev.  St.  1873,  p. 
747,  §  2;  Tenn.  St.  1871,  §§  4013, 
4014;  Tex.  Rev.  Stat.  1879  (Code  Cr. 
Proc.)  arts.  035,  652;  Vt.  Rev.  Laws 
1880,  §§  1653,  1654;  Va.  Code  1873, 
p.  1246,  §§  7,  9;  West  Va.  Rev.  St. 
1879,  c.  55,  §§  3,  4;  Wis.  Rev.  St. 
1878,  §  4690;  Federal  Courts,  1  U.  S. 
Stat,  at  L.  119,  §  30;  5  U.  S.  Stat,  at 
L.  282 ;  1  U.  S.  Rev.  Stat.  §  819. 

1  As  in  Ala.  Code,  p.  698. 

2  Noles  V.  State,  24  Ala.  672  (1854). 

3  Dunn  V.  Commonwealth,  6  Pa.  St. 
384  (1847);  Dougherty  i'.  Common- 
wealth, 69  Pa.  St.  286  (1871) ;  Younger 
V.  State,  2  W.  Va.  579  (1868).  See 
Hopt  V.  People,  110  U.  S.  574  (1884)  ; 
bk.  28  L.  ed.  262;  s.c.  18  Cent.  L.  J. 
269. 

*  See  Barney  v.  People,  22  III.  160 
(1859). 

5  Babcock  v.  People,  15  Hun 
(N.  Y.)  347  (1878). 


402 


HOMICIDE. 


[chap.  XX. 


discovered,  it  will  not  be  error  to  swear  the  jury  and  wit- 
nesses by  using  the  real  name  and  all  the  aliases.^ 

Unless  regulated  by  statute,  it  rests  in  the  discretion  of 
the  court  whether  the  jurors  be  sworn  as  they  are  individu- 
ally accepted,^  in  groups,^  or  all  together  when  the  jury  is 
complete.* 

In  the  absence  of  any  form  of  oath  being  prescribed  by 
statute,  in  a  prosecution  for  homicide,  one  substantially  com- 
plying in  form  with  the  common  law  oath  will  be  sufficient.^ 
Slight  variation  in  the  words,  without  the  omission  of  any 
important  part,  is  not  reversible  error.^  Thus  in  Colorado  it 
has  been  held  that  where  the  record  discloses  an  oath  requir- 
ing the  jury  to  "  well  and  truly  try  the  issue  joined,  and  a 
true  delivery  make  between  the  people  and  the  state  of 
Colorado  and  Si  Minich,  the  defendant  at  the  bar,  and  a  true 
verdict  render  accordingly  to  the  law  and  the  evidence,"  is 
sufficient;"  and  the  same  was  held  in  a  Nevada  case  where 


1  People  V.  Everhardt,  104  N.  Y. 
591  (1887);  affirming  5  N.  Y.  Cr. 
Kep.  91. 

2  People  V.  Carpenter,  102  N.  Y.  238 
(1886)  ;  affirming  38  Hun  (N.  Y.)  490. 
In  this  case  the  court  say  :  "  There  is 
no  rule  of  practice  which  requires  the 
court  to  postpone  the  swearing  of  the 
jury  until  the  drawing  of  tiie  panel  is 
wholly  completed;  and  it  is  within 
the  discretion  of  the  trial  court  to  de- 
termine the  practice,  and  no  impair- 
ment of  the  prisoner's  legal  right  is 
made  after  he  has  been  allowed  a  fair 
opportunity  to  interpose  a  peremptory 
challenge  to  a  proposed  juror,  that  he 
is  foreclosed  as  to  the  further  exercise 
of  the  right  by  the  administration  of 
the  oath  to  the  juror  at  any  time  after 
he  has  been  examined  and  accepted." 

3  O'Connor  v.  State,  9  Fla.  215 
(I860)  ;  State  v.  Anderson,  4  Nev.  265 
(1868). 

*  People  V.  Reynolds,  16  Cal.  128 
(1860)  ;  O'Connor  v.  State,  9  Fla.  216 
(I860)  ;  Roberts  v.  State,  65  Ga.  430 
(1880).  But  in  Wisconsin  it  seems 
that  a  different  doctrine  prevails,  it 
having  been  tliere  held  in  liamb  v. 
State,  30  Wis.  424  (1874),  that  it  is 


essential  that  the  jurors  be  sworn  in 
a  body. 

5  Chitty  Cr.  L.  551.  The  form  of 
oath  at  conmion  law  is  as  follows : 
"  You  shall  well  and  truly  try,  and 
true  deliverance  make  between  our 
sovereign  lord  the  king  and  the  pris- 
oners at  the  bar,  whom  you  shall  have 
in  charge,  and  a  true  verdict  give 
according  to  the  evidence.  So  help 
you  God." 

«  See  Crist  v.  State,  21  Ala.  137 
(1852);  Baxter  v.  State,  15  Lea 
(Tenn.)  657  (1885)  ;  Fitzhugh  v. 
State,  13  Lea  (Tenn.)  258  (1884); 
Hartigan  v.  Territory,  1  Wash.  Tr. 
447  (1874). 

"  Minich  v.  People,  8  Colo.  440 
(1885)  ;  s.c.  9  Pac.  Rep.  4.  Tiie  court 
say  that  the  declaration  that  they 
were  duly  sworn  implies  that  the  oath 
was  administered  with  the  requisite 
formality  and  solemnity ;  that  the 
jurors  in  open  court  were  required  to 
hold  up  their  liands  and  promise  to 
perform  the  duties  specified,  there 
being  an  appropriate  reference  to  the 
duty ;  such  as  "  in  the  presence  of  the 
everliving  God,"  or  "  so  lielp  me  God." 
Citing  Kerr  v.  State,  30  Ohio  St.  614 


SEC.  368.]  THE   JURY.  .  403 

the  form  was  simply  "  to  well  and  truly  try  this  cause,  and  a 
true  verdict  render,  according  to  the  law  and  the  evidence."  ^ 
In  Tennessee  an  oath  to  "  well  and  truly  try  the  issues  joined  " 
lias  been  held  sufficient.'-^  But  where  the  form  is  prescribed 
by  statute,  it  should  be  strictly  followed.^ 

The  record  should  show  that  the  jury  were  sworn  and  the 
oath  administered ;  but  where  it  is  very  manifest  from  the  record 
that  the  jury  were  sworn  to  try  the  issues  made  by  the  charges 
in  an  indictment  for  murder,  and  by  defendant's  plea  of  not 
guilty,  it  is  immaterial  that  the  language  used  is  not  that 
ordinarily  used.^  Thus  in  Crist  v.  State,^  which  was  a  trial 
for  murder,  the  record,  at  its  commencement,  did  not  state 
that  the  jury  were  sworn,  but  at  the  commencement  of  the 
record  of  the  second  day's  proceedings,  it  stated  that  "  there- 
upon also  came  the  defendant  and  his  c-ounsel,  as  also  the 
counsel  for  the  state,  together  with  the  jury  that  had  been 
impanelled  as  aforesaid,  and  sworn  as  aforesaid,  and  the  trial 
of  said  cause  Avas  resumed,"  &c.,  and  afterwards  stated  that  the 
jury  '^  return  into  court,  and  on  their  oaths  say,"  &c.,  and  the 
court  held  that  it  sufficiently  appeared  from  the  record  that 
the  jury  were  sworn,  and  that  the  aj)pellate  court  would 
presume  they  were  sworn  before  the  testimony  was  heard. 

It  is  said  by  the  supreme  court  of  Tennessee  in  the  case  of 
Fitzhugh  V.  State  ^  that  where  the  record  in  a  capital  case 
recites  that  the  jurors  were  sworn  "  to  well  and  truly  try  the 
issues  joined,"  and  not  containing  the  form  of  "well  and  truly 
try  and  due  deliverance  make,"  it  is  sufficient  at  least  when 
first  objected  to  in  the  appellate  court.  And  a  verdict  in  a 
capital  case  will  not  be  set  aside  because  the  jury  were  sworn 
to  accept  the  law  as  given  by  the  court,  this  being  their 
duty  in  any  event." 

Sec.  368.  Discharge  of  jurors.  —  It  is  sometimes  proper 
for  the   court  to  discharge   jurors  during  the  trial;  but  the 

(1881)  ;  Bartlett  v.  State,  28  Ohio  St.  "  State    v.  Rollins,  22    N.    II.    528 

669    (1876);    Wareham   v.    State,    25  (1851). 

Ohio  St.  601  (1874).  *  Baxter  v.  State,  15  Lea  (Tenii.) 

1  State    V.    Angelo,    18    Nev.   425  657  (1885). 

(1884)  ;  s.c.  4  Pac.  Rep.  1080.  ^  21  Ala.  1:^7  (1852). 

2  Fitzhugh  V.  State,  13  Lea  (Tenn.)  ^  13  Lea  (Tenn.)  258  (1884). 

258  (1884).  ■  Hartioan    v.   Territory,   1    Wash. 

Tr.  447  (1874). 


404 


HOMICIDE. 


[chap.  XX. 


cause  for  wliicli  a  juror  may  be  discharged  sliould  not  be 
the  result  of  the  action  of  the  court  in  derogation  of  the 
prisoner's  right,  but  something  over  which  the  court  had 
no  control,  as,  for  instance,  sickness  or  other  imperative 
necessity.^ 

Sec.  369.  Separation  —  During  trial.  —  The  question 
whether  the  separation  of  the  jury  on  the  trial  of  an  indict- 
ment for  homicide  is  error,  demanding  a  new  trial,  is  one 
which  largely  depends  upon  the  circumstance  of  each  par- 
ticular instance,  and  no  general  rule  can  be  laid  down  which 
can  be  followed  in  all  cases ;  but  the  weight  of  authority 
now  is  to  the  effect  that  it  is  not  error  for  the  court  to 
allow  the  jury  to  separate  prior  to  the  final  submission  of  the 
cause,  under  proper  instructions  as  to  their  acts  regarding 
the  case  on  trial  during  their  separation,  unless  it  is  shown 
that  thereby  something  occurred  by  which  the  defendant  was 
liable  to  be  prejudiced ;  ^  and  the  better  opinion  is  that  this 


1  Bates  ;,'.  State,  19  Tex.  122  (1857). 

2  See  People  v.  Boniiey,  19  Cal. 
426  (1861)  ;  Mat/  v.  People,  8  Colo. 
210  (1885)  ;  s.c.  6  Cr.  L.  Mag.  692  ; 
6  Pac.  Rep.  816;  Elkin  v.  People,  5 
Colo.  508  (1881)  ;  State  v.  Babcock, 
1  Conn.  401  (1815)  ;  State  v.  Madoil, 
12  Fla.  151  (1868)  ;  Kirk  v.  State,  73 
Ga.  620  (1884)  ;  Neal  v.  State,  04  Ga. 
272  (1879)  ;  Keins  v.  People,  30  111. 
256  (1863)  ;  Hennincj  v.  Slate,  106 
Ind.  386  (1885)  ;  .s.c.  55  Am.  liep. 
756;  6  N.  E.  Rep.  803;  7  N.  E.  Rep. 
4  ;  Jarrell  v.  State,  58  Ind.  293  (1877); 
Evans  v.  State,  7  Ind.  271  (1855); 
State  V.  Felter,  25  Iowa,  67  (1868); 
s.c.  Law.  Insan.  92  ;  State  v.  Hornsby, 
32  La.  An.  1268  (1880)  ;  State  v. 
Johnson,  30  La.  An.  921  (1878);  State 
V.  Frank,  23  La.  An.  213  (1871); 
State  V.  Evans,  21  La.  An.  321  (18(U)); 
State  V.  Tucker,  10  La.  An.  501  (1855); 
State  V.  Desmond,  5  La.  An.  399 
(1850)  ;  State  v.  Cro.sby,  4  La.  An. 
434  (1849)  ;  Slate  v.  Humsh,/,  8  Rob. 
(La.)  554  (1844);  s.c.  41  Am.  Dec. 
305;  State  v.  Ryan,  13  Minn.  370 
(1808)  ;  Bilansky  i:  State,  3  Minn. 
427  (1859)  ;  Coleman  r.  State,  59 
Miss.  484  (1882)  ;  Territory  v.  Clay- 


ton, 8  Mont.  1  (1888)  ;  s.c.  19  Pac. 
Rep.  293;  Stephens  v.  People,  19 
N.  Y.  553  (1859)  ;  People  v.  Mont- 
gomery, 13  Abb.  (N.  Y.)  Pr.  N.  S. 
207  (1871)  ;  Stephens  v.  People,  4 
Park.  Cr.  Cas.  (N.  Y.)  396  (1859)  ; 
State  V.  Baker,  63  N.  C.  276  (1869); 
Moss  V.  Commonwealth,  107  Pa.  St. 
267  (1884)  ;  State  r.  Anderson,  2  Bail. 
(S.  C.)  L.  565  (1832)  ;  State  v.  Mckee, 
1  Bail.  (S.  C.)  L.  651  (1830)  ;  s.c.  21 
Am.  Dec.  499  ;  Wilson  v.  State,  6 
Baxt.  (Tenn.)  206  (187.3);  Odle  r. 
State,  6  Baxt.  (Tenn.)  159  (1873)  ; 
Boyett  r.  State,  26  Tex.  App.  689 
(1886)  ;  s.c.  9  S.  W.  Rep.  275  ;  Bailey 
V.  State,  26  Tex.  App.  706  (1887)  ; 
s.c.  9  S.  W.  Rep.  270  ;  Wilson  v.  State, 
18  Tex.  App.  576  (1885);  Ogle  v. 
State,  16  Tex.  App.  361  (1885)  ;  West 
V.  State,  7  Tex.  App.  150  (1880)  ;  Cox 
V.  State,  7  Tex.  App.  1  (1880)  ;  Harti- 
gan  ?'.  Territory,  1  Wash.  Tr.  447 
(1874).  Compare  Berry  v.  State,  10 
Ga.  511  (1851)  ;  Anonymous,  63  Me. 
590  (1874);  State  v.  Collins,  81  Mo. 
652  (1884)  ;  Peiifer  v.  Commonwealth, 
15  Pa.  St.  408  (1850)  ;  s.c.  53  Am. 
Dec.  605  ;  Cochran  v.  State,  7  Humph. 
(Tenn.)  544  (1847) ;  Wiley  v.  State, 


SEC.  370.] 


THE   JURY. 


405 


applies  to  capital  cases,^  although  it  was  formerly  frequently 
maintained  that  it  does  not.^  And  even  where  such  sepa- 
ration is  error,  the  defendant  waives  his  right  to  object, 
unless  he  does  so  before  verdict.^  But  it  has  been  held  in 
some  cases  that  the  prosecution  has  the  burden  to  show  that 
nothing  occurred  whereby  the  defendant  was  likely  to  suffer 
prejudice;^  and  still  other  courts  have  maintained,  either 
under  a  statutory  provision  or  otherwise,  that  the  jury  in 
capital  cases  can  separate  only  before  being  duly  impanelled, 
sworn,  and  charged  with  the  case,^  unless  in  charge  of  an 
officer.^  Again,  it  is  sometimes  maintained  that  while  the 
jury  may  be  permitted  to  separate  with  the  defendant's  con- 
sent, it  is  error  to  allow  a  separation  over  his  objection.'^ 
The  jurors  have  no  right,  however,  in  capital  cases  at  least, 
to  separate  without  authority  of  the  court.^ 

Sec.  370.    Same  —  Permission  to  visit  sick   relative. — 

It  has  been  said  that  in  capital  cases  the  trial  judge  may 
grant  leave  of  absence  to  attend  a  sick  relative,^  or  for  other 


1  Swan  (Tenn.)  256  (1851)  ;  Grisson 
V.  State,  4  Tex.  App.  374  (1879). 

Under  the  Missouri  Revised  Stat- 
ute of  1879,  §  1909,  permitting  the 
separation  of  tlie  jury  "except  in 
capital  cases,"  it  is  held  that  a  separa- 
tion in  a  capital  case  was  ground  for 
reversal  of  judgment,  though  there 
was  no  sTispicion  of  undue  influence. 
State  V.  Collins,  81  Mo.  652  (1884). 

1  Williams  v.  State,  48  Ala.  85 
(1872) ;  xMorgan  v.  State,  48  Ala.  65 
(1872)  ;  Jumpertz  v.  People,  21  111. 
375  (1859)  ;  Quinn  v.  State,  14  Ind. 
589  (1860)  ;  State  v.  Frank,  23  La. 
An.  213  (1871)  ;  State  v.  Evans,  21 
La.  An.  321  (1809)  ;  Woods  v.  State, 
43  Miss.  364  (1871)  ;  McLean  v.  State, 
8  Mo.  1-53  (1843)  ;  Commonwealth  r. 
Boyle,  9  Phila.  (Pa.)  592  (1800)  ; 
People  r.  Shafer,  1  Utah  Tr.  260 
(1875);  State  v.  Godfrey,  Bray t.  (Vt.) 
170  (1817). 

^  Hartigan  r.  Territory,  1  Wash. 
Tr.  447  (1874).  See  i^ilansky  v. 
State,  3  Minn.  427  (1859). 

3Henning  v.  State,   lOG  Ind.  386 


(1885)  ;  s.c.  55  Am.  Rep.  756  ;  6 
N.  E.  Rep.  803 ;  7  N.  E.  Rep.  4. 

*  Monroe  v.  State,  5  Ga.  85  (1848); 
Moss  r.  Commonwealth,  107  Pa.  St. 
267  (1884)  ;  Keenan  v.  State,  8  Wis. 
132  (1857). 

&  State  V.  Burns,  33  Mo.  483  ;  Peif- 
fer  V.  Commonwealth,  15  Pa.  St.  468 
(1850). 

^  Grisson  r.  State,  4  Tex.  App.  374 
(1879). 

■^  Anderson  v.  State,  28  Ind.  22 
(1867)  ;  Quinn  v.  State,  14  Ind,  589 
(I860). 

8  Russell  V.  People,  44  111.  508 
(1807). 

9  In  Coleman  v.  State,  59  Miss.  484 
(1882),  permission  was  given  to  at- 
tend a  dying  brother ;  and  in  Boyett 
V.  State,  20  Tex.  App.  689  (1880)  ;  s.c. 
9  S.  W.  Rep.  275,  a  juror  was  per- 
mitted, during  a  murder  trial,  to  go 
home  to  see  his  sick  wife,  accompanied 
by  a  deputy  sheriff,  with  the  consent 
of  counsel,  and  it  was  there  held  that 
the  fact  that  he  remained  in  the  room 
with  his  wife  and  little  girl  only  for 


406  HOMICIDE.  [chap.  XX. 

purposes.  Thus  in  Moss  v.  Commonwealth  ^  one  of  the 
jurors  was  absent  for  two  days  during  an  adjournment,  with 
the  permission  of  the  court,  and  in  tlie  custody  of  a  sworn 
officer,  and  this  was  held  to  be  no  ground  for  a  new  trial. 
But  where  absence  is  granted  on  condition  that  the  juror 
shall  be  attended  by  the  sheriff,  a  breach  of  the  condition 
will  vitiate  the  verdict.^ 

It  is  thought  that  physical  necessity  will  justify  a  short 
absence  where  the  interest  and  rights  of  the  defendant  are  in 
no  way  prejudiced  thereby.  Thus  in  Territory  v.  Clayton^ 
it  was  held  that  it  is  not  sufficient  cause  for  granting  a  new 
trial  that  one  of  the  jurors,  who  was  suffering  from-  diarrhoea, 
was  called  suddenly  to  the  privy,  while  the  bailiff  was  absent, 
so  that  he  could  not  notify  him,  the  juror  having  returned 
as  soon  as  possible  to  the  jury  room,  and  there  being  no  claim 
that  he  saw  or  spoke  to  any  one. 

Sec.  371.  Same  —  Durins;-  meals,  etc.  —  The  trial  jurors 
in  a  homicide  case  should  be  kept  together  and  by  themselves 
while  going  to,  coming  from,  and  at  their  meals.  Thus  in 
the  case  of  Odle  v.  State  *  a  verdict  was  held  vitiated  by  the 
fact  that  while  a  trial  for  murder  was  in  progress,  part  of 
the  jurors  were  allowed  to  sit  at  their  meals  with  three  of  the 
witnesses  for  the  state,  in  a  distinct  I'oom  from  that  where 
sat  the  officer  in  charge  and  the  other  jurors.  But  it  has 
been  held  otherwise  as  to  the  mere  fact  that  the  jury  took 
their  meals  at  the  house  of  a  person  who  aided  the  prosecu- 
tion in  selecting  the  jury,  no  tampering  being  shown.^  In 
State  V.  Baker,*^  where,  during  a  trial  for  murder,  the  jury 
were  put  in  charge  of  an  officer  to  be  kept  together,  with 
permission  to  eat  their  dinner,  and  one  of  the  jurors  was 
allowed  "  to  pass  by  or  near  a  number  of  persons  and  eat 

about  thirty  minutes  ;    that   he  coti-  no  one    concerning^   the   trial    (lurin<; 

versed  witii  no  one  hut  his  wife;  and  the  time  of    his  absence.     Wilson   v. 

tliat  the   only   reference   to   the  trial  State,  18  Tex.  App.  57G. 

was  wlien,  in  answer  to  her  question,  ^  8   Mont.   1    (1888)  ;   s.c.   19   Pac. 

he  stated  that  it  would  continue  sev-  Rep.  '203  (1885). 

eral    days,  is   no    ground    for   setting  ■*  6  Baxt.  (Tenn.)  159  (1873). 

aside  the  verdict.  ■''  Wilson  v.  State,  (5  Baxt.   (Tenn.) 

1  107  Pii.  St.  267  (1884).  200  (187:^). 

•-'  .'\nd  this  is  the  case  although  the  «  Go  N.  C.  27G  (1869). 
juror  deposed  that  he  conversed  witli 


SEC.  374.]  THE   JURY.  iCTl 

his  dinner  a  short  distance  from  the  other  jurors,  but  he 
conversed  with  no  one,"  it  was  hekl  that  this  was  nothing  of 
which  the  prisoner  had  any  right  to  complain.  And  it  has 
been  said  that  a  new  trial  will  not  necessarily  be  granted 
because  two  jurors,  during  the  trial,  went  into  a  neighboring 
hotel  and  took  a  drink,  no  harm  being  shown  to  have 
resulted.^ 

Sec.  372.  Same  —  Separation  after  retiring.  —  After 
jurors  have  retired  to  consider  the  case  they  must  not  sepa- 
rate until  they  have  rendered  their  verdict.^  This  rule  may, 
however,  have  its  exceptions.  Thus  a  separation  of  a  jury, 
caused  by  their  discharge  after  returning  a  verdict  which 
was  informal,  they  being  immediately  recalled,  and  the  ver- 
dict corrected,  only  thirty  seconds  elapsing  until  tlieir  recall, 
in  which  time  only  a  few  had  broken  ranks  and  removed  from 
where  they  stood  when  they  were  discharged,  will  not  vitiate 
the  verdict.^ 

Sec.  373.  Misconduct  by  or  relating^  to  the  jury  during 
trial.  —  The  jury  in  a  murder  case,  especiall}'  if  the  charge 
be  for  a  capital  offence,  should  always  be  in  charge  of  a  sworn 
officer,  when  not  in  the  presence  of  the  court.*  But  in  the 
case  of  Trim  v.  Commonwealth,^  during  a  trial  for  murder,  a 
portion  of  the  jurors  were  locked  in  a  room  with  an  unsworn 
deputy  sheriff,  during  the  temporary  absence  of  the  high 
sheriff,  and  this  was  held  not  to  be  such  misconduct  of  the 
jury  as  would  entitle  the  prisoner  to  a  new  trial. 

Sec.  374.  Same  —  As  to  officer  in  charge.  —  It  seems  that 
the  fact  that  the  officer  in  charge  of  a  jury  in  a  homicide  case 
may  be  interested  as  a  witness,  is  not,  of  itself,  sufficient  to 
preclude  him  from  having  charge  of  the  jury.  Thus  in  Peo- 
ple V.  Coughlin,'^  which  was  the  trial  of  an  indictment  for 
homicide,  the  sheriff  in  charge  of  the  jury  during  their  de- 

1  May  r.  People,  8  Colo.  210  (1885);  (1860);   Trim   v.   Commonwealth,  18 

8.C.  6  Cr.  L.  Mag.  692;   6  Pac.  Rep.  Gratt.  (Va.)  983  (1868).     See  Kirk  v. 

816.  State,  73  Ga.  620  (1884);  Dumas  v. 

•■2  See  Maher  v.  State,  3  Minn.  444  State,  63  Ga.  600  (1879). 


(1859).  3  18  Gratt.  (Va.)  983  (U 

3  Boj'ett  V.  State,  26  Tex.  App.  689  «  (55   Mich.   704  (1887)  ;   s.c.  32  N. 

(1886)  ;  s.c.  9.  S.  W.  Rep.  275.  W.  Rep.  905. 
*  Gibbons   v.    People,   23   111.    518 


408 


HOMICIDE. 


[chap.  XX. 


liberations  had  entered  the  complaint  on  which  the  defendant 
was  arrested,  and  had  also  testified  as  a  witness  for  the  peo- 
ple ;  but  this  is  not  thought  ground  for  a  new  trial. 

The  officer  must  hold  no  communication  whatever  with 
any  of  the  jurors  concerning  the  case  on  trial  unless  author- 
ized to  do  so  by  law;  he  must  lodge  them  at  night  where 
there  is  no  danger  that  they  will  be  tampered  with  or  spoken 
to  concerning  the  case  ;  ^  he  must  take  general  care  that  noth- 
ing occurs  whereby  they  may  be  prejudiced  in  any  way  con- 
cerning the  case  on  trial ;  and  he  has  no  right  to  allow  them 
to  exercise  any  unusual  rights  or  privileges  without  permis- 
sion of  the  court.2 

Sec.  375.  Same  — Holding-  conimunication  with  outside 
parties.  —  It  has  been  said  that  during  the  trial  the  jury  must 
not  be  permitted  to  hold  communications  with  outside  parties 
by  letter^  or  otherwise*     Thus  in  State  v.  Robinson,^  during 


1  It  is  said  in  Dumas  v.  State,  63 
Ga.  600  (1870),  that  a  new  trial  will 
not  be  granted  to  a  prisoner  convicted 
of  murder,  because  the  jury  were 
lodged  at  night  in  the  house  of  a 
brother  of  one  wlio  had  furnished 
money  and  otiierwise  aided  in  the 
prosecution,  said  brother  being  the 
jailer,  and  having  had  no  communica- 
tion with  the  jury,  wlio  were  in  charge 
of  a  bailiff.  Neither  is  it  ground  for 
reversal  that  the  bailiff  in  charge  of 
the  jury  slept  in  the  room  with  them 
one  night  during  the  trial,  nothing 
further  appearing  to  defendant's  prej- 
udice. Kirk  t'.  State,  73  Ga.  620 
(1884). 

2  See  People  v.  Gray,  61  Cal.  164 
(1882);  s.c.  44  Am.  Rep.  549;  Jones 
V.  People,  6  Colo.  452  (1882)  ;  s.c.  45 
Am.  Rep.  526. 

3  State  V.  Robinson,  20  W.  Va.  713 
(1882). 

■*  See  McCreary  !•.  Commonwealth, 
2!)  Pa.  St.  323  (1857) ;  Crocker  v.  Hoff- 
man, 48  Ind.  207  (1874). 

Tiie  judge  should,  on  each  adjourn- 
ment, admonish  the  jury  that  they 
are  not  to  converse  among  themselves 


on  any  subject  connected  with  the 
trial,  or  to  allow  any  one  else  to  talk 
to  or  with  tliem  or  in  their  hearing, 
upon  any  subject  connected  with  the 
trial,  or  to  form  or  express  any 
opinion  until  the  case  is  finally  sub- 
mitted to  them.  Should  tlie  judge 
fail  to  do  this,  the  defendant  must 
request  it  to  be  done,  if  desired ; 
an  omission  without  objection  will 
not  be  ground  for  a  new  trial.  Peo- 
ple v.  Draper,  28  Hun.  (N.  Y.)  1 
(1882). 

In  the  case  of  State  v.  Anderson,  4 
Nev.  265^1868),  during  the  progress 
of  a  murder  trial,  and  while  the  court 
had  taken  a  recess,  the  jury  were  in 
the  court-house  in  charge  of  the  slier- 
iff,  and  one  of  the  jurymen,  standing 
near  a  window,  saw  a  newspaper  in 
the  hands  of  a  person  near  the  win- 
dow on  the  outside  of  the  court-house, 
and  asked  him  for  it.  The  party  ad- 
dressed handed  up  the  paper  to  the 
juror,  saying  no  more  tlian  "You  are 
welcome."  The  juror  glanced  over 
the  paper  and  then  handed  it  back. 
Tiie  court  held  that  this  was  not 
such    misconduct    in    the     juror    as 


6  20  W.  Va.  713  (1882). 


SEC.  376.]  THE   JURY.  409 

the  trial  of  a  capital  case,  the  jury  were  allowed  to  receive 
sealed  letters.  The  court  held  that  this  afforded'  ground 
sufficient  for  setting  aside  a  verdict  of  guilty  of  murder  in 
the  first  degree,  although  there  was  no  reason  for  supposing 
that  the  letters  contained  anything  likely  to  influence  the 
verdict. 

Some  cases  hold,  however,  that  the  accused  cannot,  as  a 
matter  of  right,  demand  that  the  jurors  he  restricted  in  their 
communications  beyond  the  subject  of  the  trial,  all  restric- 
tions beyond  this  resting  in  the  sound  discretion  of  the  trial 
judge.i 

Sec.  376.  Same  —  Attending  church.  —  It  is  thought  that 
attending  church  is  not  such  misconduct  on  the  part  of  the 
jury  as  will  vitiate  their  verdict  or  be  grounds  for  awarding 
a  new  trial,  even  though  the  minister  delivers  a  discourse  on 
homicide,  or  addresses  the  jury  directly  regarding  the  case 
in  which  they  are  impounded,  Avhere  it  does  not  plainly 
appear  that  their  verdict  was  affected  and  the  defendant 
prejudiced  thereby .^  Thus  in  a  recent  case,^  where  the  trial 
court  allowed  the  jury,  during  an  adjournment  of  the  trial 
of  an  indictment  for  murder,  to  attend  church,  where  they 
heard  a  sermon  on  the  text,  "  Thou  shalt  not  kill,"  the 
appellate  court  refused  to  interfere  with  a  verdict  of  guilty, 
it  not  being  alleged  that  the  jury  were  influenced  by  such 
sermon.^  In  the  case  of  Prooper  v.  Reg.,^  during  the  prog- 
ress of  a  trial  for  felony,  the  jury  attended  church,  in 
charcre  of  a  constable,  and  at  the  close  of  the  service  the 
clergyman  directly  addressed  them,  remarking  on  the  case 

would  entitle  the  defendant  to  a  new  amined  the  skull  being  known  to  the 

trial.  prisoner's  counsel  before  they  entered 

In   Wilson   v.  People,  4  Park.   Cr.  upon  the  defence. 

Gas.    (X.   Y.)   G19   (1859).        is  said  i  See  State  v.  Cucuel,  31  N.  J.  L. 

that  it  is  no  reason  for  setting  aside  a  (2  Vr.)  249  (1865). 

conviction  of  murder  that,  during  a  -  Alexander  v.  Commonwealth,  105 

recess,  one    of    the   jurors  examined  Pa.  St.  1  (1884)  ;  s.c.  5  Cr.  L.  Mag. 

a   piece    of    the    skull  of   the  person  829;    Prooper  v.  Reg.,  25  Can.  L.  J. 

alleged  to  have  been  murdered,  which  (Can.  S.  C.)  261  (1888). 

was  lying   on    the    district  attorney's  ^  i05  Pa.   St.  1   (1884)  ;  s.c.  5  Cr. 

table,  the  circumstances  of  the  case  L.  Mag.  829. 

being  such  as  to  show  that  the  juror  *  See  post,  §  -377. 

could  not  have  been  misled   thereby,  ^  25  Can.   L.  J.    (Can.   S.   C)  261 

and  the  fact  of  the  juror  having  ex-  (1888). 


410  HOMICIDE.  [chap.  XX. 

of  one  Millman,  who  had  been  executed  for  murder  in 
Prince  Edward  Island,  and  told  them  that  if  they  had  the 
slightest  doubt  of  the  guilt  of  the  prisoner  they  were  trying 
they  should  temper  justice  with  equity.  The  prisontjr  was 
convicted.  The  court  held,  affirming  the  judgment  of  the 
Court  of  Crown  Cases  Reserved  for  Nova  Scotia,  that,  al- 
though the  remarks  of  the  clergyman  were  highly  improper, 
it  could  not  be  said  that  the  jury  were  influenced  by  them  so 
as  to  affect  their  verdict. 

Sec.  377.  Same  —  Use  of  liquor  by  jury. — It  has  been 
said^  that  the  jury  may  not  order  for  themselves  intoxicating 
liquors  without  the  knowledge  and  permission  of  the  trial 
judge,  some  of  the  cases  going  to  the  extent  of  holding  that 
the  use  of  intoxicating  liquors  to  any  extent  vitiates  the  ver- 
dict.2  These  cases  all  hold  that  the  courts  will  not  inquire 
whether  any  juror  was  affected  by  what  he  drank  or  not ; 
that  the  only  sure  safeguard  to  the  purity  and  the  correctness 
of  the  verdict  is  that  no  drinking  shall  be  allowed.^  But  the 
better  opinion  is  thought  to  be  that  a  conviction,  even  in  a 
capital  case,  will  not  be  vitiated  by  the  moderate  use,  on  the 
part  of  the  jurors,  of  spirituous  and  intoxicating  liquors,  unless 
such  drinking  affected  the  verdict,  or  the  liquors  were  sup- 

1  In  People  v.   Gray,  01    Cal.   164  wood    r.   People,   3    Park.    Cr.    Cas. 

(18S2)  ;  s.c.  4-4  Am.  Rep.  549,  during  (N.  Y.)  43  (1855),  wliere  it  was  said 

a   murder  trial,  lasting  eleven   days,  to  rest  on  mere  dicta  of  the  majority 

large   quantities    of   beer,   wine,    and  of  tlie  judges  in  People  v.  Douglass, 

whiskey  were  ordered  by  tlie  jury,  at  and  to  be  in  direct  conflict  with  Pi'o- 

their  own  expense,  and  consumed  by  pie  v.  McKay,  18  Johns  (N.  Y.)  212 

them,  mostly  before  the  submission,  (1820).     This  opinion  of   Selden,  J., 

but  some  afterwards,  without  permis-  was  itself  denied  in  Stepliens  v.  Pco- 

aion    of   tlie    court,  and    without    the  pie,   4   Park.    Cr.    Cas.    (N.    Y.)    503 

knowledge  of  the  defendant.     It  did  (1859)  ;  s.c.  19  N.  Y.  560,  and  the  doc- 

not  clearly  appear  that  any  juror  was  trine  of  the  principal  case  recognized 

intoxicated,  but   the    conviction    was  as  sound. 

set  aside.  ^  People,  v.  Grai/,  01  Cal.  104  ri882)  ; 

^  People  V.  Grai/,  61  Cal.  104  (1882) ;  s.c.  44  Am.  T?ep!  540,  citing  Pelham 

s.c.  44  Am.  Rep.  549;  People  v.  Donii-  r.  Page,  6  Ark.  535  (1840)  ;  Gregg  v. 

lass,  4  Cow,  (N.  Y.)  26  (1825) ;   s.c.  IMcDaniel,  4  Harr.  (Del.)  307  (1845)  ; 

15  Am.  Dec.  332,  overruled  by  Wil-  Davis   v.   State,  35  Ind.  490  (1871); 

son  V.  Abrahams,  1   Hill.  (N.  Y.)  207  s.c.  9  Am.  Rep.  700;  Ryan  v.  Harrow, 

(1841).    See  Ryan  v.  Harrow,  27  Iowa,  27  Iowa,  494  (1869)  ;  s.c.  1  Am.  Rep. 

494  (1809);  s.c.  1  Am.  Rep.  302;  State  .302;    State    v.    Baldy,    17    Iowa,   39 

V.  Baldy,  17  Iowa,  .39  (1864)  ;  .Jones  (1864)  ;  Leighton  v.  Sargent,  31  N.  H. 

V.  State,  13  Tex.  168  (1854).  119  (1855)  ;  State  v.  BuUard,  16  N.  H. 

Tliis  doctrine  was  denied  in  East-  139  (1844)  ;  Brant  v.  Fowler,  7  Cow. 


SEC.  378.]  THE   JURY.  411 

plied  l)y  an  interested  party.^  In  Jones  v.  People,''^  the 
supreme  court  of  Colorado  say  that,  such  misconduct  on  th» 
part  of  the  jury  certainly  deserves  condemnation  and  punish- 
ment, and  the  jurors  who  procured  and  drank  the  liquor  in 
this  case  were  severally  censured,  and  likewise  fined  by  the 
court ;  but  this  is  a  matter  entirely  apart  from  the  question 
of  setting  aside  the  verdict  when  its  fairness  is  not  impeached. 

Sec.  378.  Same  —  Discretion  of  trial  judge. —  The  trial 
court  has  a  large  discretion  as  to  the  a^its  of  the  jury  during 
the  trial,  which,  when  exercised  beforehand,  will  not  be  inter- 
fered with,  unless  abused.  And  where  it  does  not  appear 
that  the  acts  of  the  court  complained  of,  have  in  any  way 
affected  the  jury  in  the  full  and  impartial  discharge  of  their 
duties  in  trying  the  case,  and  rendering  a  just  and  true  ver- 
dict therein,  there  is  no  sufficient  cause  for  holding  the  verdict 
thereby  vitiated,  or  for  that  reason  setting  it  aside .^  Thus 
it  is  said  in  Jones  v.  People,*  that  a  conviction  for  murder 
will  not  be  set  aside  because,  with  the  permission  of  the  court, 
the  jury  attended  the  theatre  in  a  body,  in  charge  of  an 
officer.  In  the  case  of  Alexander  v.  Commonwealth,^  the 
trial  court  allowed  the  jury,  during  the  adjournment  of  a 
murder  trial,  to  attend  church   and  hear  a  sermon  on  the 

(N.  Y.)  502   (1827)  ;  People  v.  Dong-  v.  Hanm,  38  N.  H.  108  (1859);  State 

lass,  4  Cow.   (N.  Y.)  36  (1825);   s.c.  v.  Cucuel,  31   N.  J.  L.   (2   Vr.)   250 

15  Am.  Dec.  332;  Jones  v.  State,  13  (18(55);  Wijson  v.  Abrahams,  1  Hill 

Tex.  168  (1854).  (N.  Y.)  207*(1841)  ;  State  v.  Sparrow, 

1  See   Kee   v.    State,  28    Ark.  165  3  Murph.  (N.  C.)  487   (1819);  Howe 

(1873);  Jones  v.  People,  6  Colo.  452  v.    State,    11    Humph.    (Tenn.)    491 

(1882);  s.c.  45  Am.  Rep.  526 ;  ^Vest-  (1851);    Stone    r.    State,   4    Humph, 

moreland  v.  State,  45  Ga.  282  (1872) ;  (Tenn.)    27     (1843)  ;     Thompson    v. 

Davis   V.  People,   19   Ili.    74   (1857);  Commonwealth,   8   Gratt.    (Va.)    637 

Slate  \.  Bruce,  48  Iowa,  530  (1878);  (1851);    Coleman   v.   Moody,  4   Hen. 

s.c.  30  Am.  Ilep.  403;    Van  Buskirk  &    Munf.     (Va.)     1    (1809);    Roman 

V.   Daugherty,   44    Iowa,   42    (1876);  r.  State,  41   Wis.  312(1877);  United 

^S'/nte  V.  il/o/7>/i//,  33  Iowa,  270  (1871);  States    v.  Gibert,  2    Sumn.    C.  C.  83 

s.c.    11    Am.    Rep.    122;   Purinton  v.  (1834);  3  Whart.  Cr.  L.  §  3330. 

Humphreys,  6  Me.  379  (1830);  Com-  ^o  Colo.  452  (1882);  s.c.  45  Am. 

monwcaltii    v.   Roby,    29    Mass.    (12  Rep.  526. 

Pick.)  496  (1832) ;  Pope  v.  State,  36  ^  jones    v.    People,    6    Colo.    452 

Miss.  121   (1858) ;  State  v.  Baber,  74  (1882) ;  s.c.  45  Am.  Rep.  526. 

Mo.   292    (1881);    s.c.   41    Am.    Rep.  ■*  6  Colo.  452  (1882);  s.c.  45  Am. 

314 ;  State  v.  West,  69  Mo.  401  (1879)  ;  Rep.  526. 

s.c.  33  Am.  Rep.  506;  State  v.  Upton,  '^  105  Pa.   St.  1   (1884)  ;  s.c.  5  Cr. 

20   Mo.    397    (1855) ;    Richardson    v.  L.  Mag.  829. 
Jones,  1  Nev.  405  (1865) ;   Gilmanton 


412  HOMICIDE.  [chap.  XX. 

text,  "  Thou  shalt  not  kill."  The  court  below  refused  to 
igrant  a  new  trial  for  the  prisoner  because  of  the  sermon  lis- 
tened to  by  the  jury  and  charged  to  have  prejudiced  them, 
and  the  defendant  appealed.  The  appellate  court  held  that 
the  act  was  within  the  discretion  of  the  trial  court  and  refused 
to  ffrant  a  new  trial. 

Sec.  379.    Same — Conduct    and    words    of    counsel. — 

The  counsel  in  a  homicide  case  should  not  say  or  do  any- 
thing- not  in  the  line  of  their  duties,  which  might  have  the 
effect  of  influencing  the  jury.  In  the  case  of  Thomas  v. 
State  1  offers  by  the  district  attorney,  and  also  by  counsel 
for  the  accused,  made  in  presence  of  the  jurors,  to  contribute 
to  their  sustenance  during  the  trial,  were  said  to  be  highly 
improper,  but  not  grounds  for  a  reversal  of  a  judgment  of 
conviction  on  the  trial  of  an  indictment  for  murder. 

Sec.  380.    Same  —  Waiver    of    irregularities.  —  One    on 

trial  for  a  homicide,  like  any  other  defendant,  will  be  deemed 
to  have  waived  any  irregularity  in  the  conduct  of  the  jury 
which  he  perceives  but  neglects  to  have  remedied  ia  proper 
time.  Thus  where  the  prisoner's  counsel  stated  privately  to 
the  court  that  it  was  not  best  to  say  anything  about  a  juror's 
reading  a  newspaper  report  of  the  homicide,  as  it  might,  by 
giving  the  article  undue  prominence,  do  more  harm  than 
good,  it  was  held  that  the  irregularity  was  waived.^ 

Sec.  381.  Misconduct  by  or  relating  to  the  jury  after 
retiring.  —  Tlie  only  duty  of  the  jury,  after  they  retire, 
stated  in  general  terms,  is  to  confer  together  touching  the 
guilt  or  innocence  of  the  defendant  in  relation  to  the  homi- 
cide for  which  he  is  on  trial,  until  they  arrive  at  a  unanimous 
conclusion,  or  until  it  is  manifest  that  they  cannot  agree. 
They  should  all  consult  together,  each  in  the  hearing  of  all 
the  others ;  and  secrecy  between  some  of  them,  from  the 
others,  is  improper.^  They  should  confer  with  no  outside 
person  except  the  officer  in  charge ;  nor  should  any  person 
except  him  be  allowed  in  their  presence ;  *  and  they  should 

1  61  Miss.  GO  (1883).  •»  But  a  verdict  of  guilty  of  murder 

2  Bulliner  v.  Teople,  95  III.  394  will  not  be  set  aside  because  a  druiik- 
(1880).  en  man  was   found  in  the  jury-room 

2  Monroe  v.  State,  5  Ga.  85  (1848).     asleep,  he  having  been  at  once  ejected. 


SEC.  381.]  THE   JURY.  413 

not  consult  even  with  him  upon  any  question  whatever 
rekitecl  to  the  case  under  their  consideration.^  They  shouhl 
not  be  aUowed  to  communicate  with  the  judge,  except  in 
open  court  and  in  the  prisoner's  presence;^  but  a  verdict  will 
not  be  set  aside  merely  because  the  judge,  as  he  passed  the 
jur3--room,  said  that  he  was  going  home,  and  that  if  they 
agreed  they  could  send  for  him,  it  being  apparent  that  the 
communication  could  not  have  done  liarm.^ 

Neither  is  it  proper  for  the  jury  to  receive  or  read  law 
books,^  or  accounts  or  records  of  other  trials  or  cases.*  Thus 
in  a  case  where  the  defence  was  moral  insanity,  and  insanity 
caused  by  intoxication,  the  jury,  while  together,  were  allowed 
to  receive  newspapers  containing  accounts  of  the  Guiteau 
trial,  and  of  the  testimon}-  of  one  of  the  expert  physicians  for 
the  government,  expressing  his  disbelief  in  moral  insanity 
and  dipsomania,  and  it  was  held  that  this  afforded  ground 
for  setting  aside  the  verdict.^  Nor  should  the  jury  be  per- 
mitted to  examine  things  not  in  evidence,®  or  places  acces- 
sible to  them  connected  with  the  homicide.  But  it  has  been 
said  that  a  verdict  of  murder  in  the  second  degree  will  not 
be  set  aside  because  the  jury  examined  the  room  in  which 
the  homicide  was  committed,  it  having  been  committed  in 

and  it  being  certain  that  his  presence  ^  Jones  v.  State,  89  Ind.  82  (1883). 

caused  no  liariii.     State  v.  Gould,  90  But  see  Graves  v.  State,  63  Ga.  740 

N.  C.  658  (1884).  (1879);  State  v.  Harris,  34  La.   An. 

1  State  v.  Brown,  22  Kan.  222  118  (1882);  Gandolfo  r.  State,  11 
(1879)  ;  Wilson  1-.  People,  4  Park.  Cr.  Ohio  St.  114  (18(30).  See  post, 
Cas.   (N.  Y.)  019  (1859);    People   v.  §381. 

Hartung,  4    Park.  Cr.    Cas.   (N.  Y.)  *  Jones  v.  State,  89  Ind.  82  (1883)  ; 

259  (1859).     But  such  an  irregularity  State    v.    Robinson,   20  W.    Va.    713 

will  not  vitiate  a  conviction  if  it  ap-  (1882)  ;    s.c.  43  Am.  Rep.  799.     See 

pears  beyond  all  reasonable  doubt  that  Graves   v.  State,  63  Ga.    740  (1879); 

no  injury  has  resulted  to  the  prisoner  State  ;•.  Harris,  34  La.  An.  118  (1882) ; 

therefrom.     Wilson  ?•.  People,  4  Park.  Gandolfo    v.    State,  11    Ohio   St.   114 

Cr.  Cas.  (X.Y.)  619  (1859).    However,  (1860). 

abailiff'sassistingthe  jury  to  decipher  ^  State  r.  Robinson,  20  W.  Va.  713 

and  read  the  instructions,  although  at  (1882)  ;  s.c.  43  Am.  Rep.  799. 

the  request  of  the  jurors,  is  ground  for  '^  Yates  r.  People,  38  III.  527  (1865)  ; 

setting  aside  a  verdict  of   guilty    of  Wilson    v.   People,  4    Park.  Cr.   Cas. 

murder.     State  i\  Brown,  22  Kan.  222  (N.  Y.)  619    (1859)  ;    People  r.  Har- 

(1879).  tung,  4   Park.  Cr.  Cas.    (N.    Y.)  256 

2  Cartwrisjht  v.  State,  12  Lea  (1859).  See  Titus  v.  State,  49  N.  J, 
(Tenn.)  620  (1883).  L.   (20  Vr.)  36  (1886) ;    s.c.  9  Cr.  K 

Mag.  353.     See  post,  §  383. 


414  HOMicroE.  [chap.  xx. 

the  court-house,  it  not  appearing  that  they  were  influenced 
thereby.^ 

Sec.  382.  Same  —  Law  books  in  jury  room.  —  Where 
upon  the  trial  of  a  capital  case,  in  which  a  verdict  of  guilty 
was  rendered,  it  appeared  that  the  jury  had  with  tliem  in  the 
jury  room  the  volume  of  the  oj^inions  of  the  supreme  court 
containing  the  report  of  a  previous  trial  of  the  case,  a  new 
trial  was  granted,  it  not  appearing  from  affidavits  of  the 
jurors,  or  otherwise,  that  they  had  not  read  tlie  report  of  the 
case  printed  tlierein.^  But  it  is  said  in  tlie  case  of  State  v. 
Harris  ^  that  a  new  trial  will  not  be  granted  to  one  convicted 
of  manslaughter,  because  there  were  law  books  in  the  jury 
room,  and  because  the  jury  accidentally  had  with  them  the 
written  testimony  taken  at  the  inquest,  it  not  appearing  that 
the  evidence  or  the  books  were  read,  or  that  any  harm  resulted 
to  the  prisoner  from  the  fact.  And  a  new  trial  will  not  be 
granted  i,n  a  murder  case  because  tlie  jury,  after  they  had 
agreed  on  their  vertlict,  procured  a  copy  of  the  code  for  the 
purpose  of  putting  their  verdict  in  proper  form.^ 

It  has  been  said  that  a  verdict  of  murder  in  the  second 
degree  will  not  be  set  aside  because  the  jury  read  from  the 
penal  code,  it  not  appearing  that  they  were  influenced  in  their 
verdict  thereby.^  And  wliere  the  judge  presiding  at  the  trial 
of  a  prisoner  for  murder,  sent  to  the  jury,  on  their  request,  in 
the  absence  of  the  prisoner,  a  copy  of  the  statutes  of  the  state, 
calling  their  attention  to  the  three  sections  relating  to  homi- 
cide, it  was  held  to  be  an  exercise  of  discretion  on  the  part 
of  the  judge  which  did  not  prejudice  the  prisoner,  and  fur- 
nished no  ground  for  the  reversal  of  judgment.^ 

Sec.  383.    Same  —  Examining'  thing's  not  in  evidence.  — 

In  Yates  v.  People,'''  upon  the  trial  of  an  indictment  charging 
murder,  it  was  held  to  be  sufficient  cause  for  a  new  trial,  that 
after  the  jury  had  retired,  a  pistol,  that  had  been  shown  to 
them  on  the  trial,  but  not  identified  as  the  one  by  means  of 

I  INIcDonald  v.  State,  15  Tex.  App.  ^  McDonald  v.  State,  15  Tex.  App. 

493  (1884).  493  (1884). 

••2  Jones  1-.  State,  89  Ind.  82  (1883).  «  Gandolfo   v.   State,  11    Ohio   St. 

3  34  La.  An.  118  (1882).  114  (1800). 

*  Graves     v.     State,  63     Ga.     740  "  38  111.  527  (18G5). 

(1879). 


SEC.  383.]  THE   JURY.  415 

which  the  deceased  came  to  his  death,  was  sent  to  them  with- 
out the  prisoner's  consent ;  and  that  they  by  experimenting 
therewith,  were  influenced  in  determining  the  guilt  of  the 
prisoner.  But  in  the  case  of  Titus  v.  State,^  after  the  jury 
in  a  trial  for  murder  had  retired  to  consider  their  verdict, 
certain  of  them  sent  for  a  magnifying  glass,  and  with  it  com- 
})ared  certain  wood  fibres,  that  were  adhering  to  the  clothes 
of  the  murdered  girl,  with  those  of  a  wooden  platform  that 
had  been  exhibited  at  the  trial,  and  upon  which,  the  state 
contended,  the  deceased  liad  been  thrown  down,  it  appearing 
that  the  entire  identity  of  appeai'ance  of  fibres  was  an  undis- 
puted fact,  the  court  held  that  the  verdict  would  not  be  dis- 
turbed for  this  irregularity. 

1  49  N.  J.  L.  (20  Vr.)  .3G  (1886)  ;  s.c.  9  Cr.  L.  Mag.  353. 


CHAPTER  XXI. 

EVIDENCE  —  PRELIMINARY. 

Sec.  384.  Witnesses. 

Sec.  385.  Same  —  Separating  witnesses. 

Sec.  386.  Same  —  Number  of  witnesses. 

Sec.  387.  Same  —  Competency  of  witnesses. 

Sec.  388.  Same  —  Husband  and  wife. 

Sec.  389.  Same  —  Co-defendant  whose  indictment  nollied. 

Sec.  390.  Same  —  Medical  e.xperts. 

Site.  391.  Incriminating  testimony. 

Sec.  392.  Determining  the  competency  of  evidence. 

Sec.  393.  Order  of  proof. 

Sec.  384.  Witnesses.  —  The  general  rules  relating  to  wit- 
nesses in  criminal  cases  —  their  competency,  credibility,  the 
order  of  their  testimony,  and  the  number  allowed  to  testify  to 
the  same  fact  —  are  applicable  in  trials  for  homicide.  Per- 
sons charged  with  crimes  have,  in  most  jurisdictions,  a  right, 
guaranteed  by  constitutional  provision,  to  be  confronted  by 
witnesses  against  them,  as  well  as  to  have  compulsory  process 
for  witnesses  to  testify  in  their  favor,  and,  therefore,  proof  of 
their  guilt  is  of  no  avail,  unless  adduced  in  their  immediate 
presence,  and  in  a  judicial  inquiry  into  the  charge  against 
them  ;  but  this  right  may  be  waived  by  one  charged  with  hom- 
icide, and  he  may  agree  that  depositions  shall  be  received 
instead.! 

One  indicted  for  a  homicide  is  usually  entitled  to  a  list 
(either  indorsed  upon  the  indictment  or  otherwise)  of  the 
witnesses  to  appear  against  him.  This  is  either  provided  by 
statute,  or  it  is  the  general  practice ;  ^  but  it  is  not  always 
so.'^  The  prosecution  need  not,  however,  adhere  strictly  to 
such  list  in  examining  its  witnesses,  and  the  prosecuting  offi- 
cer may  exercise   his  own  discretion  ;    he    may  examine  all 

1  People  (,'.  Murray,  52  Midi.  288  ^  See  State  v.  Nugent,  71  Mo.  130 
(1883).                                                           (1879). 

2  See  1  Bish.  Cr.  L.  (3d  ed.)  §  950. 

416 


SEC.  386.]  EVIDENCE — PRKLIMINARY.  417 

material  witnesses,  whether  their  names  are  upon  the  list  or 
not,  or  he  may  omit  to  call  and  examine  witnesses  whose 
names  are  upon  the  list.^ 

Sec.  385.  Same  —  Separating  witnesses.  —  The  rule  of 
practice  that  witnesses  may  be  separated  and  excluded  from 
the  court-room  is  applicable  to  trials  for  homicide,  generally 
at  the  discretion  of  the  court,  as  in  other  felonies,^  but  at  the 
option  of  the  parties,  or  either  of  them.^  Where  either  party 
exercises  his  option  and  requires  a  separation  of  the  witnesses, 
it  is  no  abuse  of  discretion  to  allow  a  part  of  the  witnesses  to 
remain  in  court  to  assist  in  the  prosecution  or  defence.* 

The  object  of  this  proceeding  is  for  the  purpose  of  promot- 
ing the  credibility  of  the  witnesses,  and,  therefore,  its  omission 
can  affect  their  credibility  only ;  ^  and  while  excluded  from 
the  court-room  they  are  not  necessarily  to  be  treated  as  if 
they  were  jurors,  and  kept  from  all  communication  concern- 
ing the  case  on  trial.  Neither  will  the  court  order  an  oflfieer, 
having  charge  of  witnesses  Avho  have  been  excluded  from  the 
court-room  until  they  should  severally  be  called  to  testify,  to 
prohibit  them  from  reading  the  newspaper  accounts  of  the 
evidence  in  the  case.^ 

Sec.  386.  Same  —  Number  of  witnesses.  —  It  is  some- 
times proper  for  the  court  to  prevent  the  repetition,  by  many 
different  witnesses,  of  the  same  fact;  but  this  is  largely  a 
matter  of  discretion.  Thus  on  the  trial  of  an  indictment  for 
murder  it  appeared  that  the  deceased  was  privately  and 
hastily  buried  on  the  day  next  after  the  killing.  The  body 
was  afterwards  disinterred  to  ascertain  whether  any  wounds 
appeared  upon  it.  Two  of  the  witnesses  who  were  present 
on  that  occasion  were  permitted  to  testify  as  to  what  they 
had  seen  ;  and  two  others,  one  of  them  a  physician,  the  only 
medical  witness  that  testified,  gave  evidence  as  to  the  con- 
dition  of   the    body,  and  the    nature    and   character  of   the 


'State   V.    C.nin,    20  W.   Va.    079          •"  See  flellems  r.  State,  22  Ark.  207 

(1882).       See    Morrow  v.    State,    57     (18fiO). 

Mis.s.  8.S6  (1880).  4  Tliomas    v.    State,    27    Ga.    287 

2  Thomas    v.    State,  27    Ga.    287     (18r)9). 

(1859).      See    Hellems  v.    State,    22          ^  Commonwealth     v.     Hersey,    84 

Ark.  207  (1860).  Mass.  (2  Allen)  173  (1861). 
27 


418  HOMICIDE.  [chap.  XXI. 

wounds  upon  it.  It  was  held  on  appeal  that  the  trial  court 
did  not  err  in  thus  permitting-  four  witnesses  to  prove  the 
same  harrowing  state  of  facts.^ 

Sec.  387.  Same  —  Competency  of  witnesses.  —  Any  per- 
son whose  disqualification  is  not  shown  is  a  competent  witness 
either  for  or  against  the  person  charged  with  the  homicide. 
Persons  who  are  jointly  indicted  with  the  defendant  are  not 
generally  competent  to  testify  in  his  favor,  even  when  a  sepa- 
rate trial  is  had,  because  the  mere  severance  for  the  purpose 
of  a  trial  does  not  make  such  joint  defendant  a  competent 
witness  for  the  state ;  ^  and  where  the  indictment  is  nollied, 
that  he  may  testify  for  the  state,  the  verdict  of  conviction 
will  be  set  aside .^  But  it  is  said  in  the  recent  case  of  State 
V.  Walker,*  that  j>ersons  who  are  jointly  indicted  witli  the  de- 
fendant, one  of  whom  has  been  acquitted,  and  a  nolle  prosequi 
entered  as  to  the  others,  are  competent,  though  another  joint 
indictment  is  pending  against  them  and  the  defendant  for 
the  murder  of  another  man,  at  the  same  time,  and  in  the 
same  transaction,  as  that  for  which  the  defendant  is  on  trial. 
In  some  states,  however,  the  rule  is  otherwise,  unless  a  con- 
spiracy is  charged.^ 

Any  person  who  is  in  possession  of  information  material  to 
the  inquiry  is  a  competent  witness  in  the  first  instance,  and 
his  exclusion  is  error.     Thus  in  the  case  of  Reg.  v.  Brown,^ 

1  McConnell  v.  State,  22  Tex.  App.  not  apply  where,  altlioufrh  tlie  indict- 
354  (1886)  ;  s.c.  58  Am.  Rep.  047  ;  'o  nient  charges  a  conspiracy,  tliere  is 
S.  W.  Rep.  699.  no    evidence    to    sustain    the    charge. 

2  See  post,  §  889.  In  such  a  case  the  accused  is  entitled 

3  Stater.  Walkei',  98  Mo.  95  (1888);  to  the  testimony  of  the  person  jointly 
s.c.  9  S.  W.  Rep.  646  ;  State  v.  Chyo  indicted  with  him.  But  evidence  of 
Chiagk,  92  Mo.  395  (1887)  ;  .s.c.  4  threats  made  by  such  persons  are  in- 
S.'W.  Rep.  704.  competent  against  the  other.     Wright 

4  98  Mo.  95  (1888)  ;  s.c.  9  S.  W.  v.  Commonwealtii,  85  Ky.  123  (1887); 
Rep.  646.  s.c.  9  Or.  L.  Mag.  331  ;  2  S.  W.  Rep. 

^  Wright  r.  Commonwealth,  85  Ky.  904. 
123(1887);  .s.c.  9  Or.   L.   Mag.  331;  In    People    r.    Sweeney,   41    Hun 

2  S.  W.  Rep.  904 ;  People  r.  Sweeney,  (N.  Y.)  332   (1886),  A    and    B  were 

41  Hun  (N.  Y.)  332  (1886).  "  jointly  indicted  for  murder.     On  B's 

Kentucky   Criminal   Code,  section  trial  \  was  as  acces.sible  to  tlie  prose- 

234,   providing  that  if  two   or   more  cution   as   to  B.     Held   that  no   pre- 

persons    be   jointly  indicted    for    the  sumptiojis  against  B  were   admissible 

same  offence,  each  shall  be  a  compe-  by  reason  of  the  fact  that  B   did  not 

tent  witness  for  the  others,  unless  the  make  A  a  witness. 
indictment  charges  a  conspiracy,  does  •>  21  Up.  Can.  Q.  B.  330  (1860). 


SEC.  390.]  EVIDENCE  —  PRELIMINARY.  419 

where  the  defendant  Avas  on  trial  for  the  murder  of.  one  H., 
the  principal  witness  for  the  crown  stated  that  the  crime  was 
committed  on  the  first  of  December,  1859,  on  the  bridge 
over  the  river  Don,  and  that  the  prisoner  and  one  S.,  who 
had  been  previously  tried  and  acquitted,  threw  H.  over  the 
parapet  of  the  bridge  into  the  river.  The  counsel  for  the 
prisoner  then  proposed  to  prove  by  one  D.  that  S.  was  at  his 
place,  fifty  miles  off,  on  the  evening,  but  the  trial  judge  re- 
jected the  evidence,  laying  that  S.  might  be  called,  and  if 
contradicted,  might  be  confirmed  b}'  other  testimony.  S.  was 
called,  and  swore  that  he  was  not  present  at  the  time,  but  he 
not  being  contradicted,  D.  was  not  examined.  On  appeal  it 
was  held  that  the  presence  of  S.  was  a  fact  material  to  the 
inquiry,  and  that  D.  therefore  should  have  been  admitted 
when  tendered;  and,  the  prisoner  having  been  found  guilty, 
a  new  trial  was  ordered. 

Sec.  388.  Same  —  Husband  and  wife.  —  At  common  law 
a  husband  and  wife  are  not  competent  to  testify  for  or  against 
each  other ;  but  the  rule  has  frequently  been  changed  by 
statute.^ 

Sec.  389.    Same  —  Co-defendant  whose  indictment  nol- 

lied.  —  It  is  sometimes  the  practice  to  discontinue  the  prose- 
cution of  one  defendant,  if  he  will  testify  against  others 
indicted  for  the  same  crime,  and  this  is  within  the  discretion 
of  the  prosecuting  officer,  with  the  consent  of  the  court ;  but 
this  must  not  be  done  under  circumstances  which  are  liable 
to  induce  falsehood  and  injury  in  the  defendant.  Thus  in  the 
case  of  Harris  v.  State  ^  several  defendants  were  indicted  for 
murder,  and  the  prosecuting  attorney  told  them  that  he 
would  enter  a  nolle  prosequi  as  to  the  defendant  whose  state- 
ment would  be  of  most  value  to  the  prosecution,  and  the 
court  held  that  a  conviction  obtained  on  evidence  thus 
induced  could  not  be  sustained. 

Sec.  390.  Same  —  Medical  experts.  —  The  general  rules 
relating  to  experts,  and  particularly  to  medical  experts,  are 
applicable  in  the  trial  of  an  indictment  for  homicide.     When 

1  See    1    Greenl.    Ev.    (14th    ed.)  2  i5  Tex.  App.  629  (1884). 

§  334,  et  seq. 


420  HOMICIDE.  [chap.  XXI. 

the  defence  is  mental  irresponsibility,  physicians  who  were 
sent  to  the  jail  to  examine  the  accused  are  properly  allowed 
to  testify  for  the  prosecution  as  to  his  mental  capacity. 
Their  visit  neither  gave  rise  to  the  relation  of  patient  and 
physician,  nor  resulted  in  compelling  the  accused  to  give 
evidence  against  himself.^ 

In  the  case  of  Proofer  v.  Reg.,^  on  a  trial  for  murder  by 
shooting,  a  witness  called  as  a  medical  expert  stated  to  the 
crown  prosecutor  that  "  there  were  inditla  in  medical  science 
by  which  it  could  be  said  at  what  distance  from  the  human 
body  the  gun  was  fired."  Tliis  was  objected  to,  but  the 
witness  was  not  cross-examined  as  to  the  grounds  of  his 
statement.  He  then  described  what  he  found  on  examining 
the  body  of  the  murdered  man,  and  stated  the  maximum 
and  minimum  distances  at  which  the  shot  must  have  been 
fired.  The  court  held  that  the  opening  statement  of  the 
witness  established  his  right  to  speak  as  a  medical  expert, 
and  not  having  been  shown  by  cross-examination,  or  by  other 
medical  evidence,  that  liis  statement  was  untrue,  his  evidence 
was  properly  admitted. 

Sec.  391.  incriminating'  testimony.  —  In  prosecutions 
for  homicide,  as  well  as  in  other  cases,  a  witness  is  not 
obliged  to  reply  to  any  question,  the  answer  to  which,  in  his 
judgment,  may  criminate  himself.^ 

Sec.  392.    Determining  the  competency  of  evidence.  — 

It  is  sometimes  necessary  for  the  court  to  hear  proof  from 
which  to  determine  the  competency  of  evidence  offered  touch- 
ing the  meiits  of  the  charge  under  consideration,  which  evi- 
dence usually  consists  of  dying  declarations  of  the  deceased;* 

1  People  V.  Kemmler,  110  N.  Y.  Bmiielv.  State,WMiss.(SS<mQ(\.&,M.) 
nSO  (ISDO);  s.c.  24  N.  E.  Rep.  9;  41  401  (1847);  s.c.  47  Am.  Dee.  0:3 ;  Don- 
All).  L.  J.  464.  nelly  r.  State.  26  N.  J.  L.  (2  Diitcli.) 

•^  25  Can.  L.J.  (Can.  S.C)  26  (1888).  46:!.  601  (1857)  ;  State  v.  Williams,  67 

3  Mimuis  r.  State,  16  Ohio  St.  221  N.   C.   12   (1872);   Smith   v.   State,  9 

(186.3).  Humph.   (Tenn.)  0  (1848);    State   v. 

•»  Johnson     v.     State,    79    Ala.    9  Howanl,  :32  Vt.  380  (1850)  ;  Swisher 

(1872);    Collier  v.  State,  20  Ark.  36  i:    Commonwealth,    26    Graft.    (Va.) 

(1859);  People  v.  Glenn,  10  Cal.  32  963,  965   (1875);   s.c.   21    Am.   Rep. 

(1858);   Slate  v.  Ellioti,  4'j  Iowa,  486  330;  Hill  r.  Commonwealth,  2  Gratt. 

(1877);  s.c.  2  Am.  Cr.  Rep.  322;  State  (Va.)    594   (1845);    Re<r.   r.   Hunt,  2 

/•.  Ross,  18  La.  An.  340  (1866)  ;  Lam-  Cox  C.  C.  2:19  (1817)  ;  Rex  ;;.  Johns, 

belh  f.  State;23  Miss.  322  (1852)  ;  Mc-  1  East  P.  C.  :]57  (1790)  ;  Rex  v.  Wei- 


SEC.  393.]  EVIDENCE  —  PRELIMINARY.  421 

and  while  the  court  is  hearing  this  preliminary  proof  it  is 
proper  to  require  the  jury  to  retire,^  but  it  is  not  error  to 
allow  them  to  remain,  if  they  are  told  to  disregard  entirely 
all  of  such  proof.^ 

Sec.  393.  Order  of  proof.  —  In  prosecutions  for  homicide, 
the  rules  prescribing  the  order  of  proof,  although  they  should 
be  followed  as  closely  as  may  be,  are  not  arbitrary ;  but  the 
order  may  be  varied,  if  circumstances  require  it,  at  the  dis- 
cretion of  the  court.2  The  corpus  delicti,  however,  ought 
to  be  shown  first,  as  far  as  the  testimony  can  possibly  be 
separated.^  And  where  several  defendants  are  charged  as 
conspirators,  the  conspiracy  should,  if  possible,  be  fii-st 
established  j^rijna  facie,  before  the  acts  and  declarations  of 
one  are  received  in  evidence  against  the  others ;  but  this  rule 
cannot  well  be  enforced  where  the  proof  of  the  conspiracy 
depends  upon  a  vast  amount  of  circumstantial  evidence,  or 
a  vast  number  of  isolated  and  independent  facts.  And  it 
has  been  held  that  in  any  case  where  such  acts  and  declara- 
tions are  introduced  in  evidence,  and  the  whole  of  the  evi- 
dence introduced  on  the  trial,  taken  together,  shows  that 
such  a  conspiracy  actually  existed,  it  will  be  considered  im- 
material whether  the  conspiracy  was  established  before  or 
after  the  introduction  of  such  acts  and  declarations.  The 
prosecution  may  either  prove  the  conspiracy  which  renders 
the  acts  of  the  conspirators  admissible  in  evidence,  or  it  may 
prove  the  acts  of  the  different  persons,  and  thus  prove  the 
conspiracy.'^ 

The  proof  of  conspiracy  which  will  authorize  the  introduc- 
tion of  evidence  as  to  the  acts  and  declarations  of  co-conspira- 

bourn,  1  East  P.  C.  358  (1792)  ;  Rex  111.    1    (1887)  ;    s.c.   0    Cr.    L.    Mag. 

r.Jnhns.l  Leach  C.C.  (4th  ed.)  504  n.  829;    3    Am.    St.    Rep.   320;  0    Am. 

(1790);  Rex   v.  Hucks,  1  Stark.  521  Cr.    Rep.   570;    12    N.  E.    Rep.    805; 

(181(3).     See  Jackson  ;,•.  State,  50  Ga.  17  N.  E.  Rep.  898. 
•.i35  (1870)  ;  Campbell  i:  State,  11  Ga.  3  People    v.    Millard,    53  Mich.  63 

353  (1852) ;  Starkey  v.  People,  17  III.  (1884)  ;  People  v.  Hall.  48  Mich.  482 

17  (1855).  (1882) ;  s.c.  42  Am.  Rep.  477  ;  4  Am. 

1  Price  V.  State,  72  Ga.  441  (1884)  ;  Cr.  Rep.  357. 

People  V.  Smith,  104  N.  Y.  491  (1887) ;  *  Spies  v.  People,  122  111.  1  (1887)  ; 

s.c.  58  Am.  Rep.  537;  State  v.  Cain,  s.c.   3    Am.    St.    Rep.   320;   9    Cr.  L. 

20  W.  Va.  679  (1882).  Mag.    829;    6    Am.    Cr.    Rep.    570; 

2  People  r.  Wilson,  55  Mich.  506  12  N.  E.  Rep.  865;  17  N.  E.  Rep. 
(1885).      See    Spies    v.    People,  122  898. 


422  HOMICIDE.  [chap.  XXI. 

tors  may  be  such  proof  only  as  is  sufficient,  in  the  opinion  of 
the  trial  judge,  to  establish  j^rma/ae/t?' the  fact  of  conspiracy 
between  the  parties,  or  proper  to  be  laid  before  the  jury  as 
tendiugt-  to  establish  such  fact.  Sometimes  for  the  sake  of 
convenience  the  acts  and  declarations  of  one  are  admitted  in 
evidence  before  such  sufficient  proof  is  given  of  the  conspir- 
acy, the  prosecution  undertaking  to  furnish  such  proof  at  a 
subsequent  stage  of  the  cause.^ 

1  Spies  1-.  People,  122  111.  1  (1887)  ;     Mag.  829;  6  Am.  Cr.  TJep.  570;  12  N. 
s.c.   3   Am.    St.   Rep.   320;   9  Cr.  L.     E.  Rep.  865;  17  N.  E.  Rep.  898. 


CHAPTER   XXII. 

EVIDENCE  —  COMPETENCE. 

Sec.  394.  Evidence  to  prove  tlie  corpus  delicti. 

Sec.  395.  Tlireats  —  By  deceased. 

Sec.  396.  Same —  Where  defendant  the  aggressor. 

Sec.  397.  Same  —  Foolhardy  threats. 

Sec.  398.  Same  —  Threats  by  third  person. 

Sec.  399.  Same  —  Threats  of  secret  societies. 

Sec.  400.  Same  —  Communicated  threats. 

Sec.  401.  Same  —  Unconiraunicated  threats. 

Sec.  402.  Same  —  Uncommuuicated  threats  as  corroborative  evidence. 

Sec.  403.  Same  —  Premeditation. 

Sec.  404.  Same  —  Overt  act. 

Sec.  405.  Acts  and  conduct  of  deceased. 

Sec.  406.  Acts  and  conduct  of  accused. 

Sec  407.  Provocation. 

Sec.  408.  Acts  inconsistent  with  declarations. 

Sec.  409.  Declarations  before  the  act  causing  death. 

Sec.  410.  Declarations  of  deceased  —  Not  made  in  extremis. 

Sec.  411.  Same  —  Declarations  as  to  slayer. 

Sec.  412.  Same  —  Dying  declarations. 

Sec.  413.  Same  —  Kansas  doctrine. 

Sec.  414.  Same  —  Scope  of  declaration  —  Illustrations. 

Sec.  415.  Same  —  Test  of  admissibility  —  Belief  in  impending  death. 

Sec.  416.  Same  —  Stating  a  fact  or  expressing  an  opinion. 

Sec.  417.  Same — Reducing  declaration  to  writing. 

Sec.  418.  Same  —  Time  of  declaration. 

Sec.  419.  Same  —  Form  of  declaration. 

Sec.  420.  Evidence  of  character,  disposition,  and  habits  of  deceased  — 

Proof  by  prosecution. 

Sec.  421.  Same  —  Proof  by  defence. 

Sec.  422.  Same  —  Where  defendant  the  aggressor. 

Sec.  423.  Tlireats  of  defendant. 

Sec.  424.  Same  —  Time  of  threats. 

Sec.  425.  Acts  of  defendant  —  Before  the  homicide. 

Sec.  426.  Same  —  Evidence  of  other  crimes. 

Sec.  427.  Same — Acts   after   the   homicide  —  Conduct   and   appearance 

indicating  mental  condition. 

Sec.  428.  Same  —  Flight  or  escape. 

423 


424  HOMICIDE.  [chap.  XXII. 

Sec.  429.  Declarations  of  defendant  —  Before  homicide. 

Sec.  430.  Same  —  Declarations  after  the  homicide  —  Proof  of,  by  prose- 
cution. 

Sec.  431.  Same  —  Proof  of,  by  defence. 

Sec.  432.  Same  —  Declarations  of  an  accomplice. 

Sec.  433.  Confessions. 

Sec.  4-34.  Same  —  Knowledge  of  effect. 

Sec,  435.  Same  —  To  whom  made. 

Sec.  436.  Same  —  Confessions  by  accomplice. 

Sec.  437.  Physical  superiority  of  defendant. 

Sec.  438.  Character  and  disposition  of  defendant. 

Sec.  439.  Same  —  Peacefulness  of  character. 

Sec.  440.  Same  —  Evidence  of  character —  Negative  evidence. 

Sec.  441.  Same  —  Reason  for  the  rule. 

Sec.  442.  Same  —  Defendant's  acts  of  kindness  to  deceased. 

Sec.  443.  Use  of  intoxicants. 

Sec.  444.  Somnambulistic  condition. 

Sec.  445.  Socialistic,  communistic,  or  anarchistic  principles. 

Sec.  446.  Same  —  Acts,  threats,  and  declarations  by  confederates  and  co- 
conspirators —  Before  the  homicide. 

Sec.  447.  Same  —  Revolutionary  organizations  —  Adopting  the  writings  of 
others. 

Sec.  448.  Acts,  threats,  and  declarations  of  co-defendant  after  homicide. 

Sec.  449.  Acts,  threats,  and  declarations  of  third  persons  before  the  homi- 
cide. 

Sec.  450.  Same—  After  the  homicide. 

Sec.  451.  Same —  Cries  or  exclamations  of  bystanders. 

Sec.  452.  Same  —  Declarations  made  in  presence  of  accused. 

Sec.  453.  Same  —  Declarations  made  out  of  presence  of  accused. 

Sec.  454.  Previous  relations  existing  between  deceased  and  defendant  — 
Previous  quarrelling  or  ill-feeling  —  Proof  of  by  prosecution. 

Sec.  455.  Same  —  Where  two  jointly  indicated. 

Sec.  456.  Same  —  Proof  of,  by  defence. 

Sec.  457.  Same  —  Showing  business  and  social  relations. 

Sec.  458.  Proof  as  to  weapon. 

Sec.  459.  Comparison  of  handwriting. 

Sec.  460.  Comparison  of  tracks  and  footprints. 

Sec.  461.  Same  —  Compelling  defendant  to  make  footprint. 

Sec.  462.  Same —  Experiments  out  of  court  with  footmarks. 

Sec.  463.  Evidence  given  at  former  inquiries  into  the  homicide  —  At  coro- 
ner's inquest. 

Sec.  464.  Same  — At  preliminary  examination. 

Sec.  465.  Same  —  At  a  former  trial. 

Sec.  466.  Same  —  Defendant's  affidavit  for  continuance. 

Sec.  467.  Legal  process  being  served  by  deceased  when  killed. 


SEC.  394.]  EVIDENCE  —  COMPETENCE.  425 

Sec.  468.  Proof  as  to  motive  —  Immunity  from  prosecution  for  an  offence 

chargeil. 

Sec.  409.  Same —  I'roof  of  guilt  of  the  crime  charged. 

Sec.  470.  Same  —  Prevention  of  testimony  by  deceased. 

Sec.  471.  Same  —  Promotion  of  })ians  of  secret  organizations. 

Sec.  472.  Same — Avarice. 

Sec.  473.  Same  —  Imjjrojter  devotion  to,  or  criminal  intimacy  witli,afeniale. 

Sec.  474.  Same  —  Marital  infidelity 

Sec.  475.  Same  — Jealousy. 

Sei'.  476.  Same  —  Revenge. 

Sec.  477.  Proof  of  insanity. 

Sec.  478.  Same — Excessive  use  of  liquors. 

Sec.  479.  Same — Expert  and  opinion  evidence  —  Experts. 

Sec.  480.  Same  —  Skilled  workmen. 

Sec.  481.  Same  —  Experts  in  insanity  cases. 

Sec.  482.  Same  —  Opinions  of  non-professional  witnesses  as  to  insanity. 

Sec.  483.  Same  —  Non-experts. 

Sec.  484.  Same  —  Experiments. 

Sec.  485.  Medical  and  scientific  books  and  writings. 

Sec.  486.  Hearsay  evidence. 

Sec.  487.  Impeaching  evidence. 

Sec.  488.  Things  in  evidence. 

Sec.  489.  View  of  premises  by  jurj'. 

Sec.  490.  Presumptions  and  burden  of  prodf  —  As  to  the  corpus  delicti. 

Sec.  491.  Same — As  to  malice. 

Sec.  492.  Same — As  to  insanity. 

Sec  394.  Evidence  to  prove  the  corpus  delicti.  —  Tlie 
corpus  delicti  consists  of  two  fundamental  and  necessary 
facts :  first,  the  death  ;  and  second,  the  existence  of  criminal 
agency  as  its  cause.^  The  proof  of  the  corpus  delicti  is 
essential  to  a  conviction  for  homicide ;  and  any  fact  which 
goes  to  show  the  existence  of  either  of  these  elements  is  ad- 
missible in  evidence  for  that  purpose.  Thus  it  is  competent 
to  show  tlie  condition  of  the  health  of  the  deceased,^  or  that 
an  injury  relied  upon  by  the  defendants  as  the  cause  of  death 
was,  in  the  opinion  of  an  expert,  received  after  death,  or  that 
the  deceased  had  possessed  and  worn  wearing  apparel  found 
where  the  body  is  supposed  to  have  been  burned  ;3  or  to 

1  Pitts?'.  State,  43  Miss.  472  (1871).  s.c.  9  Cr.  L.  Mag.  49;    12  Pac.  Rep. 

2  Phillips    V.    State,    68    Ala.    469  318 ;  affirming  s.c.  7  Cr.  L.  Mag.  512. 
(1881);    Williams    r.    State,   04    Md.  »  State  c  Williams,  7  Jones  (N.  C.) 
384  (1885)  ;  s.c.  5  Am.  Cr.  Rep.  512 ;  L.  440  (1800)  ;  s.c.  78  Am.  Dec.  248. 
State  V.  Baldwin,  36  Kan.  1   (1886) ; 


426  HOIVUCIDE.  [CHAF.  XXII. 

prove  the  official  character  of  deceased  as  an  officer  of  the 
hiw,  in  order  to  show  that  he  Avas  in  the  peace  of  the  state.^ 

In  the  case  of  State  v.  Harris,^  on  a  trial  for  murder  alleged 
to  have  been  caused  by  numerous  and  severe  beatings,  and  in 
which  the  defence  was,  that  the  deceased  came  to  his  death 
by  a  severe  burn  in  the  abdomen,  after  the  prosecution  had 
introduced  a  witness  to  prove  the  beatings,  a  physician  was 
called  as  a  witness,  who  testified  that  in  his  opinion  the  burn 
was  received  after  death,  the  evidence  was  held  to  be  admis- 
sible as  tending  to  corroborate  the  testimony  of  the  previous 
witness. 

Evidence  that  the  deceased  was  of  a  suicidal  disposition  is 
competent,  where  it  is  possible  that  the  death  was  so  caused  ;3 
or  tliat  the  deceased  had  described  an  injury  accidentally  in- 
flicted, upon  which  the  defendants  rely  as  the  cause  of  death ;  * 
or  if  the  death  be  disputed,  that  the  person  killed  was  seen 
alive  after  the  time  when  the  charge  is  alleged  to  have  been 
committed ;  ^  but  the  prosecution  cannot  rebut  such  evidence 
by  testimony  that,  about  the  time  of  the  alleged  murder,  a 
person  so  strongly  resembling  the  person  claimed  to  have 
been  murdered  as  to  have  been  mistaken  for  him  by  persons 
well  acquainted  with  the  latter,  was  seen  in  the  neighborhood 
of  the  alleged  crime.^ 

Sec.  395.  Threats  —  By  deceased.  —  Where  the  proof 
leaves  a  doubt  concerning  the  defendant's  motive  in  commit- 
ting the  homicide,  whether  he  was  actuated  by  malice,  or  be- 
lieved that  he  was  in  danger  from  the  deceased,  he  may  prove 
threats  of  violence  made  towards  him  by  the  deceased,  pro- 
vided they  were  communicated  to  him  before  tlie  killing,  as 
tending  to  show  cause  for  belief  that  he  was  in  great  danger 
of  receiving  harm  from  the  deceased  when  lie  committed  the 
homicide."    Thus  where  the  evidence  showed  that,  as  a  justice 

^  State  V.  Denkins,  24  La.  An.  29  "^  Commonwealth    v.   Webster,    59 

(1872).  Mass.   (5  Cush.)  295  (1850);  s.c.  52 

2  (53  N.  C.  1  (1808).  Am.  Dec.  711. 

3  Boyd  V.  State,  14  Lea  (Tcnn.)  '  Eiland  v.  State,  52  Ala,  322 
161  (1884).  (1875)  ;    Powell   v.   State,  52    Ala.   1 

*  State  V.  Harris,  63  N.  C.  1  (1868).  (1875)  ;    Noles  v.  State,  26  Ala.  31 

6  Commonwealth    v.    Webster,    59  (1855)  ;    Pritohett   v.   State,  22   Ala. 

Mass.   (5  Cush.)  295  (1850)  ;  s.c.  52  39  (1853)  ;  Palmore  v.  State,  29  Ark. 

Am.  Dec.  711.  248  (1874)  ;  Atkins  v.  State,  16  Ark. 


SEC.  395.J 


EVIDENCE  —  COMI'ETENCE. 


427 


of  the  x)eace,  the  prisoner  had  prosecuted  the  deceased  for  em- 
bezzlement of  the  county  school  fund,  and  that  in  consequence 
thereof,  the  deceased  vowed  that  the  defendant  should  not  be 
at  the  trial  of  said  indictment,  because  he  would  kill  him,  is 
admissible,  in  connection  with  other  circumstances,  to  show- 
that  the  defendant  was  in  fear  of  his  life  from  the  deceased, 
and  that  the  killing  was  in  self-defence.^  And  where  A  called 
B  into  his  store,  and  placing  himself  between  B  and  the  door, 
called  him  a  liar,  and  with  a  knife  in  his  hand  threatened  to 
cut  off  his  ears,  on  a  trial  of  B  for  shooting  A  maliciously,  &c., 
evidence  that  a  son  of  A,  who  was  in  the  store  when  B  en- 
tered it,  immediately  ran  up  stairs  and  returned  with  a  pistol 
in  his  hand,  which  he  snapped  at  B,  and  that  the  son  had  had 
his  pistol  loaded  a  few  days  before,  and  then  made  a  contin- 
gent threat  to  shoot  B,  of  which  B  was  notified  before  he  entered 
the  store,  was,  held  to  be  admissible.^  In  the  case  of  State  v. 
Spaulding,^  upon  the  trial  of  the  defendant  for  killing  a  con- 
stable who  was  attempting  to  arrest  him,  it  appeared  that  the 


568  (1855)  ;  People  i-.  Lee  Chuck,  74 
Cal.  30  (1887)  ;  s.c.  15  Pac.  Rep.  322; 
People  V.  Anderson,  39  Cal.  703 
(1870);  People  r.  Lombard,  17  Cal. 
316  (1801)  ;  People  r.  Williams,  17 
Cal.  142  (1860);  Keener  v.  Slate,  18  Ga. 
194  (1855);  s.c.  63  Am.  Dec.  209; 
Monroe  v.  State,  5  Ga.  85  (1848); 
Howell  V.  State,  5  Ga.  48  (1848)  ; 
Williams  v.  People,  54  111.  422  (1870); 
Campbell  v.  People,  16  111.  17  (1854)  ; 
s.c.  61  Am.  Dec.  49;  State  v.  Elliott, 
45  Iowa,  486  (1877)  ;  s.c.  2  Am.  Cr. 
Rep.  322  ;  Cornelius  r.  Common- 
wealth, 15  B.  Mon.  (Ky.)  539  (1855); 
Rapp  V.  Commonwealth,  14  B.  Mon. 
(Ky.)  614  (1854)  ;  Holloway  v.  Com- 
monwealth, 11  Bush  (Ky.)  344  (1875); 
Carico  i:  Commonwealth,  7  Bush 
(Ky.)  124  (1870)  ;  State  v.  Robertson, 
30  La.  An.  340  (1880);  State  v.  Mc- 
Coy, 29  La.  An.  593  (1877)  ;  State  i-. 
Spaulding,  34  Minn.  301  (1885)  ; 
Hawthorne  v.  State,  61  Miss.  749 
(1884)  ;  Johnson  v.  State,  54  Miss. 
4.30  (1877)  ;  Long  v.  State,  52  Miss. 
23  (1870)  ;  State  i-.  Downs,  91  Mo.  19 
(1886)  ;  State  v.  Harris,  59  Mo.  550 


(1875);  State  v.  Bryant,  55  Mo.  75 
(1874)  ;  State  v.  Keene,  50  Mo.  357 
(1872);  State  v.  Sloan,  47  Mo.  604 
(1871);  State  v.  Matthews,  78  N.  C. 
523  (1878)  ;  State  v.  Turpin,  77  N.  C. 
473  (1877)  ;  State  v.  Dodson,  4  Oreg. 
64  (1870)  ;  Horbach  v.  State,  43  Tex. 
242  (1875);  s.c.  1  Am.  Cr.  Rep.  330; 
Bnimlei/  v.  State,  21  Tex.  A  pp.  222 
(1880)  ;  s.c.  57  Am.  Rep.  612 ;  State 
V.  Abbott,  8  W.  Va.  741  (1875); 
United  States  v.  Rice,  1  Hughes  C.  C. 
560  (1875).  See  Wood  v.  State,  92 
Ind.  209  (1883);  State  r.  Blunt,  91 
Mo.  503  (1887)  ;  State  v.  Lee,  66  Mo. 
165  (1877)  ;  State  v.  Alexander,  66 
Mo.  148  (1877)  ;  McMillen  v.  State, 
13  Mo.  30  (1850) ;  Dickson  v.  State, 
39  Ohio  St.  73  (1883);  Howard  v. 
State,  23  Tex.  App.  265  (1887)  ;  King 
V.  State,  9  Tex.  App.  515  (1881); 
Lewis  1-.  Commonwealth,  78  Va.  732 
(1884). 

1  Monroe  v.  State,  5  Ga.  85  (1848). 

-  Rapp  r.  Commonwealth,  14  B. 
Mon.  (Ky.)  614  (1854). 

3  34  kinn.  301  (1885)  ;  s.c.  25 
N.  W.  Rep.  793. 


428  HOMICIDE.  [chap.  XXII. 

defendant  shot  at  the  deceased  as  soon  as  he  was  spoken  to 
bj  the  hitter,  without  waiting  for  or  seeking  any  explanation  ; 
and  the  defendant  offered  to  prove  by  his  wife  that  a  third 
party  had  grossly  insulted  her  in  his  absence,  and  had  made 
threats  to  kill  the  defendant,  which  had  been  communicated 
to  him,  and  that  in  the  afternoon  of  the  day  of  the  killing  the 
third  party  had  attempted  to  carry  the  threats  into  execution; 
that  he  was  a  hard  character,  and  that  tlie  defendant  had  good 
reason  to  believe  at  the  time  of  the  shooting  that  the  man 
who  turned  out  to  be  the  deceased  was  such  third  party.  On 
appeal  it  was  held  that  the  offer  of  the  testimony  as  one 
entire  proposition  was  properly  rejected,  but  that  so  much  as 
proposed  to  prove  the  threats  communicated  to  defendant, 
and  the  attempt  to  kill  him  on  the  same  day,  was  material  in 
connection  with  the  quarrel,  as  tending  to  explain  the  fact  of 
the  defendant's  being  armed  and  in  expectation  of  an  attack, 
and  as  bearing  on  the  question  of  premeditation. 

Sec.  396.    Same  —  Where    defendant  the    aggressor.  — 

But  where  it  is  clearly  and  unequivocally  shown  that  the 
defendant  was  the  aggressor,  and  there  is  no  pretence  that 
the  deceased  was  about  to  carry  the  threats  into  execution, 
or  that  the  defendant  had  reasonable  grounds  to  believe  and 
did  believe  that  such  was  the  case,  evidence  of  such  threats 
by  the  deceased,  although  they  were  communicated  to  the 
defendant,  is  inadmissible.^ 

Where  the  threats  had  not  been  communicated  to  the 
defendant,  they  are  admissible  only  when  the  evidence  leaves 
a  doubt  as  to  whether  the  defendant  or  the  deceased  was  the 
acporressor  at  the  time  of  the  homicide.^ 

1  Paynes.  State,  GO  Ala.  80(1877);  State    v.    Brooks,    ?,9    La.    An.    817 

People  V.  Taing,  63  Cal.  (J02  (1879)  ;  (1887)  ;  s.c.  2  So.  Kep.  498;  State  v. 

Bond    V.  State,    21    Fla.  7;;8   (188(5)  ;  Spell,  38  La.  An.  20  (1886)  ;  State  v. 

Lawrence  r.  Commonwealth,  8  S.  W.  Birdwell,    36    La.    An.    859    (1884)  ; 

Rep.    (Ky.)    165    (1888);     People   v.  Moriarty  r.  State,  62  Miss.  654  (1885)  ; 

Garbutt,   17   Mic-h.  9    (1868);    s.c.  97  State    v.    Guy,   69    Mo.   430    (1879); 


Am.  Dec.  162 ;  Law.  Insan.  463 
State  V.  Downs,  91  Mo.  19  (1886) 
State  V.  Glum,  90  Mo.  482  (1886) 
Gonzales  r.  State,  31  Tex.  495  (1808) 


Thomas  v.  State,   11    Tex.  App.  315 
(1882). 

2' Roberts    v.    State,   68    Ala.    156 
(1880)  ;  Harris  v.  State,  34  Ark.  469 


Carter  v.  State,  18  Tex.  App.  573  (1879);  Palmore  ?•.  State,  29  Ark. 
(1885);  Territory  v.  Ilalliday,  17  248  (1874)  ;  People  r.  Travis,  56  Cal. 
Pac.  Rep.  (Utah  Tx.)  118  (1888).     See    251  (1880)  ;  People  v.  Alivtre,  55  Cal. 


SEC.  398.] 


EVIDENCE COMPETENCE. 


429 


Sec.  397.  Same  —  Foolhardy  threats.  —  In  a  trial  for 
murder,  evidence  is  inadmissible,  oji  the  part  of  the  defence, 
to  slioAV  that  a  threat  made  by  the  deceased  to  put  to  his  end 
"  the  first  nigger  that  fools  with  me,"  was  communicated  to 
the  defendant  about  half  an  hour  after  it  was  made.^  But  it 
is  said  in  State  v.  McNally  ^  that  threats  of  the  deceased,  made 
fifteen  minutes  before  his  death,  that  he  ''  was  going  to  have 
blood  before  morning,"  are  properly  admitted  upon  the  trial 
of  one  charged  with  his  murder,  as  tending  to  show  that  the 
deceased  was  the  aggressor. 

Sec.  398.  Same  —  Threats  by  tliirrt  per.son. —  On  tbe  trial 
of  an  indictment  for  murder,  where  the  defendant  pleaded 
self-defence,  and  the  existence  of  a  feud  between  the  families 
of  the  deceased  and  the  accused  was  shown,  statements  of 
the  father  of  the  deceased,  made  in  the  hearing  of  the  latter. 


203  (1880)  ;  People  i-.  Scoggins,  37 
Cal.  C7(3  (1869)  ;  Davidson  r.  People, 
4  Colo.  145  (1878)  ;  Lingo  v.  State, 
29  Ga.  470  (1859)  ;  Mayfield  v.  State, 
110  Ind.  591  (1886)  ;  .s.c.  11  N.  E.  Kep. 
618;  State  v.  Brown,  22  Kan.  222 
(1879)  ;  Hart  v.  Commonwealtli,  85 
Ky.  77  (1887)  ;  s.c.  2  S.  W.  Rep.  673; 
State  V.  Jackson,  37  La.  An.  896 
(1885)  ;  State  v.  Janvier,  37  La.  An. 
645  (1885)  ;  State  v.  Labuzan,  37 
La.  An.  489  (1885)  ;  Turpin  v.  State, 
55  Md.  462  (1880)  ;  Newcomb  r. 
State,  37  Miss.  383  (1859)  ;  State  i: 
Hays,  23  Mo.  287  (1856)  ;  Binfield 
V.  State,  15  Neb.  484  (1884)  ;  s.c.  19 
N.  W.  Rep.  007  ;  State  r.  Stewart,  9 
Nev.  120  (1874)  ;  State  v.  Ferguson, 
9  Nev.  106  (1874);  State  v.  Hall,  9 
Nev.  58  (1873)  ;  Tliomason  v.  Terri- 
tory, 13  Pac.  Rep.  (N.  Mex.)  223 
(1887) ;  SloJces  v.  People,  53  N.  Y.  164 
(1873)  ;  s.c.  13  Am.  Rep.  492  ;  Slate 
V.  Tnrpin,  11  N.  C.  473  (1877);  s.c. 
24  Am.  Rep.  455  ;  Little  v.  State,  6 
Baxt.  (Tenn.)  491  (1873)  ;  West  v. 
State,  18  Tex.  App.  640  (1885)  ;  Allen 
V.  State,  17  Tex.  App.  637  (1885)  ; 
Wiggins  V.  People,  93  U.  S.  465  (1876)  ; 
bk.  23  L.  ed.  941.  See  Green  v.  State, 
69  Ala.  6  (1881)  ;  Hiighey  v.  State, 
47  Ala.  97  (1872)  ;  Dupree  v.  State, 
33  Ala.  380  (1859)  ;  s.c.  73  Am.  Dec. 


422;  Powell  v.  State,  19  Ala.  577 
(1851)  ;  Pitman  v.  State,  22  Ark.  354 
(I860)  ;  Cokt?r  v.  State,  20  Ark.  53 
(1859)  ;  Atkins  v.  State,  16  Ark. 
568  (1855) ;  People  v.  Campbell,  59 
Cal.  243  (1881)  ;  s.c.  43  Am.  Rep. 
257 ;  Keener  v.  State,  18  Ga.  194 
(1855)  ;  s.c.  63  Am.  Dec.  269  ;  Holler 
\.  State,  31  Ind.  57  (1871);  s.c.  10 
Am.  Rep.  74;  Dukes  v.  State,  11  Ind. 
557  (1858);  s.c.  71  Am.  Dec.  370; 
State  V.  Williams,  40  La.  An.  168 
(1888);  s.c.  3  So.  Rep.  629;  State  v. 
Fisher,  33  La.  An.  1344  (1881)  ;  State 
V.  Ryan,  30  La.  An.pt.  II.  1176  (1878) ; 
State  V.  Dumphey,  4  IMinn.438  (1860); 
Fxlwards  v.  State,  47  Miss.  581  (1873)  ; 
Harris  v.  State,  47  Miss.  318  (1872)  ; 
State  V.  Rider,  90  Mo.  54  (1886)  ;  State 
V.  McNally,  87  Mo.  044  (1885) ;  State 
V.  Downs,  91  Mo.  19  (1886)  ;  Fitzhugh 
V.  State,  13  Lea  (Tenn.)  258  (1884)  ; 
Pridgen  v.  State,  31  Tex.  420  (1868)  ; 
Howard  v.  State,  23  Tex.  App.  265 
(1887)  ;  Wilson  v.  State,  18  Tex. 
App.  576  (1885);  Logan  v.  State,  17 
Tex.  App.  50  (1885);  West  v.  State, 
2  Tex.  App.  460  (1878)  ;  Wliite  v. 
Territory,  3  Wash.  Tr.  397  (1888)  ; 
s.c.  19  Pac.  Rep.  37. 

1  State  V.  Guy,  69  Mo.  430  (1879). 

2  87  Mo.  644  (1885). 


430  HOMICIDE.  [CHAr.  XXII. 

that  if  the  defendant  and  his  brothers  didn't  watch  they 
would  get  hurt,  for  his  son  would  shoot  them,  were  admis- 
sible, and  an  instruction  that  they  could  only  be  considered 
to  impeach  the  testimony  of  the  deceased's  father,  who  had 
denied  making  the  statements,  was  erroneous.^ 

Sec.  399.  Same — Tlireats  of  secret  societies. —  Evidence 
tending  to  show  that  two  organizations,  of  which  the  deceased 
was  a  member,  had  threatened  the  defendant's  life,  and  that 
the  defendant  had  been  informed  of  such  threats,  is  compe- 
tent evidence.^ 

Sec.  400.  Same  —  Communicated  tlireats.  —  Where 
threats  made  by  the  deceased  have  been  communicated  to 
the  defendant,  such  threats  may  be  put  in  evidence  as  tend- 
ing to  show  the  motives  or  fear  from  or  under  which  the 
defendant  acted,  where  it  is  probable  that  those  threats  were 
the  cause  of  or  led  to  the  homicide.-^  And  it  has  been  held 
that  upon  the  trial  of  an  indictment  for  murder,  the  accused 
may  prove  that  a  man,  then  dead,  had  but  a  short  time  before 
the  homicide  told  him  that  the  deceased  had  armed  himself 
to  kill  the  accused."* 

Where  communicated  threats,  followed  by  a  subsequent 
attack,  leading  to  a  killing,  have  been  proved,  evidence  of 
other  threats,  made  between  the  communicated  ones  and  the 
assault,  mav  be  received  as  corroborating  the  evidence  and 
establishing  the  reality  of  the  danger,  under  apprehension  of 
which  the  defendant  may  have  acted.^  But  where  the  evi- 
dence shows  that  the  defendant,  armed  with  rifle  and  revol- 
ver, sought  out  the  deceased  while  engaged  at  his  work,  and 
shot  him  while  he  was  fleeing,  and  that  the  deceased  was 
wholly  unarmed,  and  there  were  no  weapons  within  his 
reach,    it  was  held  that  evidence  of  threats  made  by  the 

1  Mayfit'ld  v.  State,  110  Ind.  501  in  his  possession.  Held,  tliat  threats 
(188(3) ;  s.c.  11  N.  E.  Rep.  618.  made  by  S.  two  weeks  previously,  and 

2  People  r.  Lee  Chuck,  74  Cal.  P)0  conrmunicated  to  P.,  were  not  compe- 
(1887)  ;  s.c.  15  Pac.  Rep.  322.  tent  evidence  for  P.     Payne  v.  State, 

8  On  trial  of  P.  for  the  murder  of  (50  Ala.  80  (1877). 

S.  there  was  evidence  that  P.  having  *  Carico  ?;.  Commonwealth,  7  Bush 

had  a  quarrel  with  S.  rode  off  several  (Ky.)  124  (1870). 

miles,    procured   a  gun,   followed    S.,  ^  State  v.  Williams,  40  La.  An.  168 

attacked  him  when  tlicy  met,  and  shot  (1888)  ;  s.o.  3  So.  Rep.  629. 
and  killed  him,  S.  having  no  weapon 


SEC.  402.]  EVIDENCE COMPETENCE.  431 

deceased  against  the  defendant  Avas  properly  excluded,  as 
affording  no  justification ;  nor  was  there  error  in  refusino-  to 
instruct  the  jury  on  the  law  of  self-defence.^ 

Sec.  401.    Same — ^  Unooinimmicated    threats.  —  It  is   a 

general  rule  that  uncommunicated  threats  cannot  be  intro- 
duced in  evidence  on  a  trial  for  homicide  ;  but  this,  we 
apprehend,  relates  only  to  those  cases  where  the  intent  of  the 
defendant  in  committing  the  homicide,  or  the  motive  or 
fear  from  or  under  which  he  acted,  are  in  doubt.^  Threats 
may  always  be  proved  as  a  part  of  the  res  (jestce,  or 
as  corroborative  evidence,^  or  showing  the  attitude  of  the 
deceased  toward  the  defendant.*  Thus  on  a  trial  for  homi- 
cide committed  by  a  deadly  weapon  in  the  hands  of  either 
the  accused  or  his  brother,  both  of  whom  were  engaged  in 
an  affray  with  the  deceased,  who  first  attacked  the  brother,  it 
was  held  that  the  threats  of  the  deceased  which  may  have 
referred  to  the  brother,  made  to  a  third  person  immediately 
preceding  the  attack,  though  not  communicated  to  the  de- 
fendant or  his  brother,  were  competent  as  part  of  the  res  gestceJ' 

Sec.  402.  Same  —  Uncomiiiuiiicated  threats  as  corrob- 
orative evidence.  —  While  it  is  true  that,  as  a  general  rule, 
uncommunicated  threats  by  the  deceased  are  not  admissible 
in  evidence  on  a  trial  for  homicide,  yet  there  are  cases  where 
they  may  be  admitted  as  corroborative  evidence,^  in  establish- 
ing the  purpose  with  which  the  deceased  provoked  the  encoun- 

1  Thompson    v.  Territory,  13  Pac.  inadinissiblo.     St.Tte  r.  Blunt,  01   Mo. 

Kep.  (N.  Hex.)  223  (1887).  503  (1887)  ;  s.r.  4  S.  W.  Kep.  394. 

■^  See  People  v.  Alivtre,  55  Cal.  203  ^  See  i)ost,  §  402. 

(1880)  ;  State  v.  Williams,  40  La.  An.  ^  Tlius,  on  trial  of  D.  for  murder 

168  (1888)  ;  s.c.  3  So.  Rep.  629;  Dick-  of  B.,  it  was  proved  tliat  a  feud  had 

son  ('.  State,  39  Ohio  St.  73  (1883).  existed  between  tliem  for  many  years, 

On  the  trial  of  defendant  for  the  and  that  repeated  tlireats  of  B.  to  take 

murder   of   his    wife,   a    witness    was  D.'s  life  had  been  communicated  to  D. 

asked  by  defendant's    counsel    if   he  The  court  held  that  evidence  was  ad- 

ever  heard  any  one  speak  to  deceased  missible,  by  way  of  showinar  B.'s  atti- 

abont  her  having  "  acted  foolishly  in  tude  to  D.  at  the  time  of  killing,  that 

marrying  a  cripple"  like  defendant,  immediately  before  the  killing  B.  had 

Tiie  court  lield   that  if  the  question  made  threats  to  kill   D.,  which  were 

was  intended  to  prove  threats  by  de-  not  communicated   to   D.     Davidson 

ceased  against  defendant,  it  was  not  v.  People,  4  Colo.  145  (1878). 
in  the  proper  form,  and  should  be  ex-  ^  Dickson  r.  State,  39  Ohio  St.  73 

eluded;  and  if  it  was  not  intended  to  (1883). 
show  threats,   it  was    irrelevant   and  "^  See  ante,  §  401. 


432  ^  HOMICIDE.  [chap.  XXII. 

ter,  as  throwing  light  upon  his  acts  in  connection  therewith, 
and  as  confirming  the  reality  of  the  danger  under  the  ajipre- 
hension  of  which  the  defendant  acted.^  Thus  in  People  v. 
Alivtre,2  upon  a  trial  for  murder,  evidence  of  threats  previ- 
ously made  by  the  deceased,  to  kill  the  defendant,  was 
excluded,  it  not  appearing  that  they  had  been  communicated 
to  the  defendant.  Shortly  before  the  homicide,  an  affray 
between  the  deceased  and  the  defendant  had  occurred. 
The  court  held  on  appeal  that  the  evidence  rejected  was 
admissible  upon  the  question  as  to  whether  the  deceased 
began  the  affray,  thereby  attempting  to  fulfil  his  threats. 
In  a  recent  case  in  North  Carolina,  on  a  trial  for  murder, 
there  was  evidence  of  threats  made  by  the  deceased  against 
the  defendant,  and  communicated  to  the  defendant ;  there 
was  also  evidence  that  the  deceased  followed  the  defendant 
to  the  house,  and  that  a  rock  was  used  by  the  deceased  upon 
the  defendant's  head  during  the  fight,  but  it  did  not  clearly 
appear  by  whom  the  rock  was  introduced  into  the  fight,  the 
evidence  upon  that  point  being  wholly  circumstantial.  The 
defence  offered  evidence  of  threats  made  by  the  deceased,  but 
not  communicated  to  the  defendant,  which  was  excluded.  On 
appeal  the  court  held  that  the  evidence  of  uncommunicated 
threats  was  admissible  to  corroborate  the  evidence  of  commu- 
nicated threats  to  show  the  state  of  feeling  of  the  deceased 
toward  the  defendant,  and  the  quo  animo  with  which  he  had 
pursued  the  defendant  to  the  house;  and  as  one  of  the  circum- 
stances tending  to  show  who  introduced  the  rock  into  the  fight, 
the  evidence  upon  that  point  being  wholly  circumstantial.^ 

Sec.  403.  Same  —  Premeditation.  —  Evidence  of  threats 
is  immaterial  where  the  homicide  is  shown  to  have  been 
premeditated,  and  committed  when  the  defendant  was  in  no 
danger  from  the  deceased  ;  *  and  where  the  evidence  shows 

1  People    V.    Alivtre,    55    Cal.    26.S  402;    Stale   v.    Turpiti,  11   N.   C.  473 

(1880);   Keener  v.   State,  18  Ga.  104  (1877);  s.c  24  Am.   K'cp.  455;  State 

(1855);   Campbell    v.  People,    16   111.  r.  Dodson.  4  Orejr.  04  (1870);  State 

17  (1854) ;   Holler  v.  State,  ?,1  Ind.  57  v.  rTOodricli,  10  Vt.  116  (1847)  ;  State 

(1871);   Cornelius  v.  Commonwealth,  v.  Abbott,  8  W.  Va.  741  (1875). 

15  B.  Mon.  (Ky.)  5.39  (1855);  State  2  55  Cai.  26:5  (1880). 

V.  Williams.  40  La.  An.   168  (1888);  3  state   v.    Turpin,   77   N.   C.   il" 

8.C.  .3  So.  Kep.  629;  State  v.  Elkins,  (1877);  s.c.  24  Am.  Rep.  455. 

63   Mo.  159(1876);  Stokes  v.  People,  ■'Lawrence    v.   Commonwealth,    9 

53  N.  Y.  164  (1873)  ;  s.c.  13  Am.  Rep.  S.  W.  Rep.  (Ky.)  165  (1888). 


SEC.  405.]  EVIDENCE  —  COMPETENCE.  433 

that  the  homicide  was  the  result  of  covert  assassination, 
evidence  of  threats  made  by  the  deceased  against  the'  defend- 
ant, known  to  the  hitter,  was  properly  excluded.^ 

Sec  404.  Same  —  Overt  act.  —  Under  a  statute  declaring 
that  a  defendant  seeking  to  justif}^  on  the  ground  ot  threats 
must  prove  an  overt  act  on  the  part  of  the  deceased,  does  not 
render  evidence  of  the  threats  inadmissible  where  there  is  no 
testimony  of  an  overt  act.^  An  overt  act  against  a  third 
person  is  no  justification.  Thus  in  the  case  of  Moriarty  v. 
State  ^  A  was  seated  in  B's  shop  with  a  pistol  in  his  pocket 
and  a  double-barrelled  shot-gun  in  his  lap,  while  B  and  C 
were  engaged  in  angry  conversation.  C,  without  speaking  to 
A,  suddenly  threw  his  hand  to  his  hip  pocket,  when  A  fired 
and  killed  him.  The  court  held  that  evidence  of  antecedent 
threats  by  C  against  A  was  not  admissible ;  for  if  there  was 
any  overt  act,  it  was  against  B. 

Sec.  405.    Acts  and  conduct  of  deceased.  —  All  acts  and 

conduct  of  the  deceased  previous  to  the  fatal  encounter  may 
be  shown  in  evidence,  where  they  form  a  part  of  the  res  gestce, 
or  where  they  in  any  manner  tend  to  shed  light  upon  the 
question  of  malice,  or  of  legal  provocation,  or  upon  the  ques- 
tion whether  the  defendant  committed  the  homicide.*  Thus 
evidence  in  a  murder  trial  that  just  before  the  second  and 
fatal  encounter  the  deceased  "looked  scared,  and  looked  as  if 
he  wanted  to  get  away,"  is  admissible.^  In  Cluverius  v.  Com- 
monwealth*^ the  defendant  Avas  on  trial  for  the  murder  of  a 
woman  eight  months  advanced  in  pregnancy.  The  theory  of 
the  prosecution  was  that  he  had  seduced  her  and  murdered 
her  to  avoid  exposure.  The  prosecution  offered  in  evidence 
a  letter  written  and  signed  by  the  deceased  in  a  name  not 
her  own,  for  the  purpose  of  giving  to  the  lady  for  whom  the 

1  State  V.  Glum,  90  Mo.  482  (1886) ;  705  ,  Howard  v.  State,  23  Tex.  App. 
s.c.  3  S.  W.  Rep.  200.  265   (1887) ;   s.c.  5   S.  \V.   Rep.  231 ; 

2  Howard  v.  State,  23  Te.x.  App.  Cluverius  i\  Commonwealth,  81  Va. 
265  (1887) ;  s.c.  6  S.  W.  Rep.  231.  787     (1880);     Puryear    v.    Common- 

3  62  Miss.  054  (1885).  wealth,  83  Va.  51  (1887);  s.c.  9  Cr. 
*  See  Walker  v.  State,  63  Ala.  105     L.  Mag.  788. 

(1879) ;    State   v.  Sullivan,  51    Iowa,  ^  State    v.    Ramsay,   82    Mo.    1-33 

142  (1879)  ;  State  v.  Ramsay,  82  Mo.  (1884). 

133   (1884);    Irby   v.    State]  25  Tex.  6  gl  Va.  787  (1886). 

App.  203  (1888);  s.c.  7  S.  W.  Rep. 

28 


434  HOMICIDE.  [chap.  XXII. 

.deceased  worked  an  excuse  for  leaving  and  going  to  the  city, 
where  she  met  the  defendant  and  her  death.  The  letter  was 
held  to  be  of  the  res  gestce  and  admissible. 

But  acts  or  conduct  of  the  deceased  which  are  not  a  part 
of  the  res  gestce,  and  which  could  not  in  any  manner  have 
influenced  the  defendant  in  the  commission  of  the  homicide, 
cannot  be  shown.^  Thus  where,  in  a  murder  trial,  the  de- 
fendant's counsel,  in  his  opening,  based  his  plea  of  self-de- 
fence on  the  apparent  intention  of  the  deceased  to  draw  a 
pistol,  evidence  of  the  concealment  of  a  gun  on  the  premises 
of  the  deceased,  with  no  offer  to  show  its  relevancy,  was 
properly  excluded.^  It  is  said  in  State  v.  Gross,^  that  on  a 
trial  for  murder,  where  self-defence  was  relied  on  by  the  ac- 
cused, evidence  that  the  accused  had  testified  against  the 
deceased  before  the  grand  jury  in  a  certain  case,  was  held 
inadmissible  to  show  tlie  character  and  extent  of  the  hostil- 
ity of  the  deceased  towards  the  accused,  and  the  character  of 
the  attack  made  by  the  former  upon  tlie  latter. 

Sec.  406.  Acts  and  conduct  of  accused.  —  All  acts  and 
conduct  of  the  accused  tending  to  shed  light  upon  the  trans- 
action or  to  furnish  a  key  to  the  motive  for  the  homicide  are 
admissible  in  evidence.  Thus  on  a  trial  for  the  murder  of  the 
defendant's  paramour,  who  had  eloped  with  him  from  her 
husband,  it  was  proper  to  admit  evidence  of  his  conversation 
and  quarrels  with  her,  and  of  her  desire  to  return  to  the  city 
of  her  former  home,  as  tending  to  show  the  influences  that 
acted  upon  his  mind.* 

In  the  case  of  Theal  v.  Reg.-^  the  prisoner  was  convicted  of 
manslaughter  in  killing  his  wife,  who  died  on  the  10th  of 

1  See  Eogers  v.  State,  02  Ala.  170  was  one  of  the  posse.     On  a  trial  of 

(1878)  ;    Teople    v.   Turcott,  65    Cal.  A  for  murder  it  was  licld  error  to  pcr- 

12ti  (1881);   State  v.  Cross,  68  Iowa,  niit  tiie  state,  against  defendant's  ob- 

180(1885);   s.c.  26  N.  W.  Hep.  62.  jection,  to   show   by  B   tliat  tiie  eon- 

A  constable    and    several    persons  stable    had    in    fact    summoned    liim. 

whom  he  had  summoned  to  aid  in  ex-  Rogers  v.  State,  62  Ala.  170  (1878). 
ecuting  a  warrant  for  the  arrest  of  A,  "  People    v.  Turcott,   65    Cal.    126 

went   to    A's    house    before    day  and  (1884). 

aroused  him,  and  in  answer  to  a  ques-  ^  68    Iowa,    180     (1885)  ;     s.c.    26 

tion  from  A,  as  to  who  was  present,  N.  W.  Rep.  62. 

the    constable    stated    the    names    of  *  People    i-.   Kemmlcr,    110    X.    Y. 

several  persons  who  were  not  in  fact  580    (1800);    s.c.    21    N.   E.  Rep.  9; 

present,  —  among    them    K.       After  11  .\11>.  !..  J.  4'!4. 
this  A  shot    and    killed    one    C,  who  '^  7  Can.  S.  C.  o07. 


SEC.  408.]  EVII)I:NCE COMPETENCE.  435 

November,  1881.  The  immediate  cause  of  her  death  was 
acute  inflammation  of  the  liver,  which  the  medical  testimony 
proved  might  be  occasioned  by  a  blow  or  a  fall  against  a  hard 
substance.  About  three  weeks  before  her  death  (on  17th  of 
October  preceding)  the  prisoner  had  knocked  his  wife  down 
with  a  bottle ;  she  fell  against  a  door,  and  remained  on  the 
floor  insensible  for  some  time ;  she  was  confined  to  her  bed 
soon  afterwards  and  never  recovered.  Evidence  was  given 
of  frequent  acts  of  violence  committed  by  the  prisoner  upon 
his  wife  within  a  year  of  her  death,  by  knocking  her  down 
and  kicking  her  in  the  side.  The  following  questions  were 
reserved ;  viz.  whether  the  evidence  of  assaults  and  violence 
committed  by  the  prisoner  on  the  deceased,  prior  to  the  10th 
of  November  or  the  17th  October,  1881,  was  properly  received, 
and  whether  there  was  any  evidence  to  leave  to  the  jury  to 
sustain  the  charge  in  the  first  count  of  the  indictment?  The 
court  held,  affirming  the  judgment  of  the  Supreme  Court  of 
New  Brunswick,  that  the  evidence  was  properly  received  and 
that  there  was  evidence  to  submit  to  the  jury  that  the  disease 
which  caused  her  death  was  produced  by  the  injuries  inflicted 
by  the  prisoner. 

Sec.  407.  Provocation.  —  Where  the  evidence  opens  the 
(piestion  of  intent  to  kill,  it  is  competent  to  prove,  for  the 
purpose  of  reducing  the  homicide  to  manslaughter,  that  the 
prisoner  in  attacking  the  deceased,  acted  from  recent  provo- 
cation, likely  to  induce  the  defendant  to  chastise  the  deceased.^ 

Sec.  408.    Acts  inconsistent  with  declarations.  —  On  the 

trial  of  an  indictment  for  murder,  it  appeared  that  the  ac- 
cused had  slain  the  deceased  in  a  fight,  at  night,  without  any 
eyewitness  of  the  encounter.  The  evidence  on  the  part  of 
the  state  tended  to  show  that  two  days  before  the  fight  the 
deceased  had  threatened  to  arrest  the  defendant  for  living  in 
adultery  with  his  daughter,  and  had  insisted  on  his  marrying 
her.  The  court  said  that  the  defendant  might  show  that  the 
deceased  was  opposed  to  the  defendant's  marrying  his  daugh- 
ter, and  was  himself  living  in  adultery  with  her,  although 
she  was  his  daughter.^ 

1  People    V.   Lewis,   3    Abb.    App.  -  Walker    v.    State,    63    Ala.    105 

Dec.  (N.  Y.)  535  (1867).  (1879). 


436  HOMICIDE.  [chap.  XXII. 

Sec.  409.   Declarations  before  the  act  causing  death. — 

Declarations  of  the  deceased  made  before  the  commission  of 
the  act  which  caused  his  death  are  admissible .  in  evidence 
when  constituting  a  part  of  the  res  gestce,  or  when  showing 
a  motive,  or  when  going  to  show  who  was  the  aggressor. ^ 
Thus  in  State  v.  Vincent,^  on  the  trial  of  an  indictment  for 
murder  charged  to  have  been  committed  while  the  deceased 
and  the  accused  were  travelling  together,  it  was  held  not  to  be 
error  to  instruct  the  jury  that  what  the  deceased  said  "  about 
where  they  had  come  from,  and  where  they  were  going,  being 
engaged  in  the  journey,  might  be  received  as  part  of  the  res 
gestcB^  In  Cox  v.  State,^  where  three  persons  were  on  trial 
for  the  murder  of  B.,  it  appeared  that  B.  was  taken  out  of  his 
father's  liouse  in  the  night  by  a  party  of  men,  who  allowed 
him  to  return  under  surveillance  and  put  on  his  boots,  when 
he  told  his  mother  in  a  whisper,  with  exhibitions  of  terror, 
that  two  of  them  were  two  of  the  defendants,  and  a  third 
one  who  was  jointly  indicted  with  them.  His  statement  was 
part  of  the  res  gestce,  and  her  testimony  thereof  was  admissi- 
ble. In  Boyle  v.  State,*  on  a  trial  for  murder,  wherein  the 
defendant  pleaded  in  self-defence,  that  when  he  shot  the 
deceased  the  latter  was  striking  at  him  with  a  knife,  evidence 
that  the  night  before  the  deceased  told  the  defendant  of  two 
felonious  assaults  which  he  had  committed,  and  that  he  pre- 
ferred a  knife  to  a  pistol  as  being  more  effective,  this  state- 
ment was  held  admissible,  as  showing  that  the  defendant  had 
ground  for  believinsf  that  the  attack  on  him  was  felonious. 
And  evidence  that  the  deceased  stated  to  a  justice  of  the 
peace  that  the  defendant  threatened  to  kill  him,  and  that  he 

1  Burns    v.     State,    49     Ala.    870  and   liearingr  of  witnesses,  the  dcola- 

(1870)  ;    EJnioncls   v.   State,  34   Ark.  rations  of  M.,  made  wlien  startinor  to 

720    (1879);     Hoyle  v.  State,  97   Ind.  the  place  where  he  met  R.,  showing 

322    (1884)  ;    State  v.   Moelchen,    5:?  a  hostile    motive,  were  admissible  in 

Iowa,  810  (1880);   s.c.  5  N.  W.  Kep.  behalf   of   B.,  though   not   comnuini- 

186;    State  v.    Vincent,  24    Iowa,   570  cated    to    B.   prior  to  the   killinjc,  to 

(1868)  ;  s.c.  95  Am.  Dec.  758  ;  State  enable  the  jury  to  determine  who  was 

(.-.  Harris,  68  N.  C.  1    (1868)  ;   Cox  v.  the    ajrsressor.      Burns    v.    State,   49 

State,  8  Tex.   App.  254   (1880)  ;    .s.c.  Ala.  870    (1870).     See  ante,   §§  401, 

84  Am.  Rep.  740.  402. 

Where  on  trial  of  B.  for  murder  of  -  24  Iowa,  570  (1868). 

M.  it  was  shown   that    M.  sought  an  s  8  Tex.  App.  254  (1880);  s.c.  34 

interview   with    B.,  and    they  walked  Am.  Rep.  746. 

away    together,  out   of   the   presence  *  97  Ind.  322  (1884). 


SEC.  403.]  EVIDENCE  —  COMPETENCE.  437 

desired  the  defendant's  arrest,  is  admissible  in  connection 
with  evidence  of  a  conversation  between  tlie  justice  and  the 
defendant,  wherein  the  latter  was  informed  of  the  deceased's 
complaint.^ 

Where  it  is  essential  to  show  physical  peculiarities,  this 
may  be  done  by  the  declarations  of  the  party.  Thus  in  a 
murder  trial,  where  it  is  material  to  prove  that  the  deceased 
had  a  peculiar  tooth  in  his  mouth",  his  declarations  about  it, 
made  when  there  could  have  been  no  lis  mota^  are  admissible 
in  evidence,  as  I'es  geatce?  And  it  is  said  in  State  v.  Harris  ^ 
that  the  defendant  may  prove  that  the  deceased  said  he  had 
a  burn  upon  the  abdomen. 

But  it  is  not,  as  a  general  rule,  competent  to  prove  against 
the  defendant  previous  declarations  of  the  deceased  made 
out  of  his  presence  and  hearing,  and  not  communicated  to 
him.*  Thus  in  a  murder  trial  it  is  error  to  admit  evidence 
of  the  declarations  of  the  deceased,  made  several  hours  before 
the  murder,  that  he  expected  the  defendant  at  his  house  that 
night.^  And  evidence  that  the  deceased,  on  being  remon- 
strated with  by  the  witness  for  visiting  defendant's  wife, 
replied  that  he  should  go  there  as  much  as  he  pleased,  and 
that  he  was  not  afraid  of  defendant  or  of  his  shooting,  was 

1  State  V.  Moelchen,  53   Iowa,  310  (2)  that  declarations  of  the  deceased 

(1880)  ;  s.c.  5  N.  W.  Rep.  186.  in  regard  to  liis  having  liad  a  prior 

^  F:dmonds   i-.   State,  34   Ark.   720  attack  of  disease  of  some  character, 

(1879).  the  nature  of  which  he  did  not  entirely 

8  63  N.  C.  1  (1868).  comprehend,    and    which    were     not 

*  Cheek  f.  State,  35  Ind.  492  (1871).  made  as  explanatory  of  the  state  of 

See  People  v.  Carkhiiff,  24  Cal.  640  his  health  at  the  time,  but  merely  as 

(1864);    Weyrich    u.  People,  89    111.  a  narrative  of  past  occurrences,  were 

flO(1878);    Combs  f.  State,  75    Ind.  also    inadmissible;    (3)  that   declara- 

215  (1881)  ;   Sl'ite  v.  Vincent,  24  Iowa,  tions    of    the    deceased    in    regard    to 

570  (1868)  ;  s.c.  95  Am.  Dec.  753.  his  suspicions  of  his  wife's  chastity, 

At  the  trial  of  a  wife  for  the  mur-  not  made  in  her  presence  or  commu- 

der  of  her  husband  by  poisonine,  the  nicated  to  her,  were  also  inadmissible, 

court  held  (1)  that  evidence  of  decla-  but    that    it   was    compcte.nt   for   the 

rations  of  the  deceased,  made  at  dif-  prosecution  to  show  that  she  was  un- 

ferent  times  through  a  period  of  some  chaste,  in  order  to  establish  a  motive 

ten    years   or    more    anterior    to    his  which    might    operate    on    her   mind, 

death,  out  of  the  hearing  of  the  wife,  and  induce  her  to  take  the  life  of  the 

and  not  assented   to  by  her,  or  even  deceased.     Weyrich  v.  People,  89  111. 

made  known  to  her,  were  inadmissible  90  (1878). 

as    being   simply   expressive    of    the  ^  People    v.  Carkhuff,  24  Cal.  640 

state  of  health  and  condition  of  mind,  (1864). 
or  state  of  feeling,  of  the  deceased  ; 


438 


HOMICIDE. 


[chap.  xxh. 


held  to  be  inadmissible,  such  statements  not  having  been 
communicated  to  the  accused.^ 

Sec.  410.  Declarations  of  deceased  —  Not  made  iu  ex- 
tremis. —  Declarations  made  by  the  person  slain,  after  receiv- 
ing the  fatal  injury,  when  not  in  extremis,  must,  to  be  compe- 
tent, be  a  part  of  the  res  yestce^  unless  made  in  the  presence  of 
the  defendant,^  or  unless  contradictory  of  dying  declarations 
proved  by  the  state,  and  introduced  by  the  defendant  for 
the  purpose  of  impeaching  such  declarations.*  Thus  it  is 
said  in  People  v.  Lawrence^  that  where,  upon  a  trial  for 
murder,  the  dying  declarations  of  the  deceased  are  admitted 
in  evidence  against  the  accused,  he  may  introduce  evidence 
of  statements,  made  by  the  deceased  at  other  times,  directly 
contradicting  his  dying  declarations ;  and  it  is  not  necessary 
in  such  cases,  as  indeed  it  is  generall}^  impossible,  that  the 
attention  of  the  deceased  should  have  been  previously  called 


1  Combs  1-.  State,  75  Ind.  215 
(1881). 

2  See  State  v.  Frazier,  1  Houst. 
Cr.  Cas.  (Del.)  176  (1865)  ;  Darby 
V.  State,  79  Ga.  63  (1887)  ;  s.c.  ?>  S.  E. 
Hep.  663  ;  Stevenson  v.  State,  69  Ga. 
68  (1882);  Wilson  v.  People,  94  111. 
299  (1880);  Jones  v.  State,  71  Ind. 
66  (1880)  ;  Commonwealth  v.  Hack- 
ett,  84  Mass.  (2  Allen)  136  (1861); 
Mayes  v.  State,  64  Miss.  329  (1886)  ; 
s.c.  60  Am.  Rep.  58 ;  Warren  v.  State, 
9  Tex.  App.  619  (1880)  ;  s.c.  35  Am. 
Rep.  745;  Tooney  v.  State,  8  Tex. 
App.  452  (1880);  State  v.  Carlton, 
48  Vt.  636  (1876)  ;  Livingston  v. 
Commonwealth,  14  Gratt.  (Va.)  592 
(1857). 

On  a  trial  of  A  for  the  murder  of  B, 
testimony  of  C  that  hearing  a  gun's  re- 
port and  B  screaming,  he  ran  to  her, 
three  hundred  yards  distant,  and  that 
she  said  A  had  shot  her,  was  admis- 
sible as  part  of  the  resriestce.  Steven- 
son V.  State,  69  Ga.  68  (1882).  On 
a  trial  of  T.  for  the  murder  of  B.,  by 
poisoning,  a  witness  for  the  state 
testified  tliat  he  found  B.,  the  day 
before  he  died,  prostrate  and  helj>h>ss 
behind  a  gambling-saloon  with  which 
T.  was   connected.     It  was  held  that 


for  the  purpose  of  showing  B.'s  bodily 
condition  at  the  time,  his  declaration 
to  the  witness  was  admissible,  that  he 
was  not  drunk,  but  had  been  drugged 
and  dragged  there.  Tooney  v.  State, 
8  Tex.  App.  452  (1880). 

3  Peoi)le  V.  McCartliy,  110  N.  Y. 
309  (1888);  s.c.  18  N.  E.  Rep.  128. 
See  State  v.  Nash,7  lown,  347  (1858) ; 
State  V.  Gillick,  7  Iowa,  287  (1858)  ; 
State  V.  Devlin,  7  Mo.  App.  32  (1880). 

*  People  V.  Lawrence,  21  Cal.  368 
(1863)  ;  Felder  v.  State,  23  Tex.  App. 
477  (1887)  ;  s.c.  59  Am.  Rep.  777 
(1887). 

A  witness  testified  that  after  de; 
ceased  was  shot,  and  while  she  waj 
conversing  with  defendant  in  his  pres- 
ence, deceased  went  into  tlie  house. 
She  was  also  permitted  to  state  what 
deceased  said  in  the  house.  After  it 
ajjpeared  that  defendant  was  not  pres- 
ent at  the  conversation  in  the  house, 
the  court  struck  out  that  conversa- 
tion. The  appellate  court  held  that 
the  error,  if  any,  in  admitting  such 
conversation  was  cured.  People  v. 
McCarthy,  110  N.  Y.  309  (1888);  s.c. 
18  N.  E.  Hep.  128. 

s  21  Cal.  368  (1863). 


SEC.  411.]  EVIDENCE  —  COMPETENCE.  439 

to  the  particular  occasion  and  circumstances  under  which  the 
supposed  contradictory  statements  were  made, -in  order  to  allow 
him  to  offer  any  possible  explanation. 

On  a  trial  for  murder,  the  government  having  proved  that 
the  prisoner  beat  the  deceased,  complaints  of  pain  made  by 
the  deceased  within  two  hours  of  the  beating,  are  admissible 
in  evidence.^  And  it  was  recently  held  by  the  supreme  court 
of  Georgia  in  the  case  of  Darby  v.  State  ^  that  a  witness  may 
testify  that  the  defendant  had  cut  him,  and  he  had  done 
nothing ;  the  question  whether  the  deceased  had  done  any- 
thing or  not  being  a  question  of  fact  and  not  a  conclusion  of 
law,  the  testimony  was  propei'ly  admitted. 

Sec.  411.  Same  —  Declarations  as  to  slayer.  —  Declara- 
tions of  the  deceased  not  made  in  extremis,  as  to  the  assaulting 
party,  to  be  admissible  in  evidence  must  form  part  of  the  res 
gestce  of  the  case.  Thus  where  the  deceased,  a  few  minutes  after 
the  shooting,  said,  "  Prince  Jones  shot  me,"  this  was  held 
to  be  clearly  mere  narrative,  and  not  admissible.^  In  Mayes 
V.  State,*  which  was  a  trial  for  murder,  it  became  a  question 
whether  the  defendant  or  another  person  cut  the  deceased 
during  a  fight.  It  appeared  that  the  deceased,  after  being  cut, 
ran  away,  and  five  minutes  afterwards  made  certain  state- 
ments to  a  witness.  These  statements  were  held  not  to  be 
of  the  res  gestce,  and  therefore  inadmissible.  In  the  case 
of  State  V.  Frazier,^  on  the  trial  of  an  indictment  for  mur- 
der, the  statements  of  the  deceased,  made  about  half  an 
hour  after  the  shooting,  and  after  he  had  been  removed  to 
his  own  house  and  laid  in  bed,  were  held  inadmissible  as  part 
of  the  res  gestce. 

Where  on  a  trial  for  murder  a  witness  for  the  prosecution 
testified  that  he  saw,  from  a  distance  of  a  hundred  and  fifty 
yards,  the  deceased  when  he  fell  shot ;  and  that  he  immedi- 
ately went  to  him  and  asked  him  how  he  shot  himself,  to 
Avhich  he  replied,  "  I  did  not  do  it ;  I  Avas  shot  from  up  yon- 
der," motioning  toward  a  neighboring  mountain,  the  evidence 

1  Livingston  v.  Commonwealth,  14  *  64  Miss.  329   (1886)  ;   s.c.    1    So. 

Gratt.  (Va.)  592  (1857).  Rep.  733. 

279  Ga.  63  (1887);   s.c.  3   S.  E.  M    Houst.    Cr.    Cas.    (Del.)     176 

Rep.  663.  (1865). 

3  Jones  V.  State,  71  Ind.  66  (1880). 


440 


HOMICIDE. 


[chap.  XXII. 


was  held  to  be  competent,  as  a  part  of  the  res  gestce.  But 
proof  of  the  contemporaneous  declaration  by  the  deceased 
that  he  knew  one  G.  W.  shot  him,  for  he  had  threatened  him, 
has  been  held  to  be  incompetent.^ 

Sec.  412.  Same — Dyiiij?  declarations.  —  Dying  decla- 
rations of  the  person  killed,  as  to  matters  relating  to  the 
homicide,  which  are  of  the  res  gestce^  are  admissible  in  evi- 
dence ;  but  to  render  them  admissible  as  dying  declarations 
they  must  be  shown  to  have  been  made  when  the  declarant 
was  in  full  expectation  of  approaching  death,  and  had  lost 
all  hope  of   recovery.^     Preliminary   to    the  introduction  in 


1  Warren  v.  State,  9  Tex.  App.  619 
(1880)  ;  s.c.  35  Am.  Rep.  745. 

2  Jordan  v.  State,  81  Ala.  20  (1886)  ; 
Ward  V.  State,  78  Ala.  441  (1885); 
Keynolds  v.  State,  08  Ala.  502  (1881) ; 
Ex  parte  Nettles,  58  Ala.  208  (1877); 
May  V.  State,  55  Ala.  39  (1876) ;  Kelly 
V.  State,  52  Ala.  301  (1875)  ;  Walker 
V.  State,  52  Ala.  192  (1875)  ;  Johnson 
r.  State,  50  Ala.  456  (1873)  ;  Johnson 
V.  State,  47  Ala.  9  (1872)  ;  Jolmson  r. 
State,  17  Ala.  618  (1850)  ;  McLean 
V.  State,  16  Ala.  672  (1849)  ;  Ben  v. 
State,  37  Ala.  103  (1861);  s.c.  1  Ala. 
Sel.  Cas.  9 ;  Dunn  v.  State,  2  Ark.  229 
(1839)  ;  s.c.  35  Am.  Dec.  54  ;  People  v. 
llamirez,  73  Cal.  403  (1887)  ;  People 
r.  Lee  Sare  Bo,  72  Cal.  623  (1887)  ; 
People  V.  Brady,  72  Cal.  490  (1887)  ; 
People  V.  Abbott  (Cal.)  4  Pac.  Kep. 
769  (1884),  affirmed  without  report, 
66  Cal. ;  People  v.  Graij,  61  Cal.  164 
(1882)  ;  s.c.  44  Am.  Rep.  549;  Peo- 
ple V.  Taylor,  59  Cal.  640  (1881); 
People  V.  Hoilgdon,  55  Cal.  76  (1880)  ; 
B.C.  36  Am.  Rep.  30 ;  People  v.  Cliin 
Mook  Sow,  51  Cal.  597  (1877)  ;  Peo- 
ple V.  Ah  Dat,  49  Cal.  652  (1857); 
People  V.  Vernon,  35  Cal.  49  (1868); 
People  V.  Sanchez,  24  Cal.  17  (1864); 
People  V.  Ybarra,  17  Cal.  166  (I860)  ; 
People  V.  Lee,  17  Cal.  79  (I860)  ; 
People  V.  Glenn,  10  Cal.  32  (1858)  ; 
Dixon  1-.  State,  13  Fla.  636  (1871)  ; 
Walton  V.  State,  79  Ga.  447  (1887); 
B.C.  5  S.  E.  Hep.  203  ;  Bryant  i-.  State, 
80  Ga.  272  (1887)  ;  s.c.  4  S.  E.  Rep. 
853;  Darby  v.  State,  79  Ga.  63  (1887)  ; 


s.c.  3  S.  E.  Rep.  663;  Whitaker  v. 
State,  79  Ga.  87  (1887)  ;  s.c.  3  S.  E. 
Rep.  403 ;  Dumas  i:  State,  62  Ga.  58 
(1878);  Hill  v.  State,  41  Ga.  484 
(1871)  ;  Thompsons.  State,  24  Ga.  297 
(1858);  Campbell  v.  State,  11  Ga. 
353  (1852);  Westbrook  v.  People, 
126  III.  81  (1888)  ;  s.c.  18  N.  E.  Rep. 
304;  Digbj  v.  People,  113  111.  123 
(1885);  s.c.  55  Am.  Rep.  402;  Afoeck 
V.  People,  100  111.  242  (1881)  ;  s.c.  39 
Am.  Rep.  38;  Tracy  v.  People,  97 
111.  101  (1880)  ;  Scott  v.  People,  63  111. 
508  (1872);  Barnett  v.  People,  54  III. 
325  (1870) ;  Murpliy  r.  People,  37  III. 
447  (1865)  ;  Starkey  v.  People,  17  III. 
21  (1855) ;  Powers  v.  State,  87  Ind. 
144  (1882);  Montgomery  v.  State,  80 
Ind.  338  (1881);  s.c.  41  Am.  Rep. 
815;  Jones  r.  State,  71  Ind.  66  (1880)  ; 
Watson  V.  State,  63  Ind.  548  (1878)  ; 
Binns  v.  State,  46  Ind.  311  (1874); 
Morgan  i-.  State,  31  Ind.  193  (1809)  ; 
Ward  V.  State,  8  Blackf.  (Ind.)  101 
(1846) ;  State  v.  Schmidt,  73  Iowa, 
469  (1887)  ;  s.c.  35  N.  W.  Rep.  590; 
State;;  Johnson,  72  Ii.wa,  393  (1887); 
s.c.  34  N.  W.  Rep.  177  ;  State  v.  Leep- 
er,  70  Iowa,  748  (1880)  ;  s.c.  30  N.  W. 
Rep.  501  ;  State  v.  Elliott,  45  Iowa, 
486  (1877)  ;  s.c,  2  Am.  Cr.  Rep.  322  ; 
State  V.  Nash,  7  Iowa,  347  (1858); 
State  V.  Wilson,  24  Kan.  189  (1880)  ; 
s.c.  3()  Am.  Rep.  257;  State  v.  Bohan, 
15  Kan.  407  (1875)  ;  s.c.  2  Am.  Cr. 
Rep.  278;  State  v.  Medlicott,  9  Kan. 
257  (1872)  ;  Peoples  v.  Common- 
wealth, 87  Ky.  487  (1888);  s.c.  9  S. 


SEC.  412.] 


EVIDENCE  —  COMPETENCE. 


441 


evidence  of  such  declarations  it  must  be  shown  by  the  party- 
offering  them  in  evidence,  that  they  were  made  under  a  sense 
of  impending  death.i  It  is  not  necessary,  however,  that  it 
should  be  stated  at  the  time  that  the  declarations  were  so 
made;  it  being  enough  if   it  satisfactorily    appears,  in   any 

1  1  Greenl.  Ev.  (14th  ed.)  §  158. 


W.  Rep.  509;  Vauslian  v.  Common- 
wealth, 86  Ky.  4;U  (1887);  s.c.  6 
S.  W.  Rep.  153  ;  Marcum  v.  Common- 
wealth (Ky.)  1  S.  W.  Rep.  727 
(1880);  Luker  v.  Commonwealth 
(Ky.)  5  S.  W.  Rep.:}54  (1887) ;  Mock- 
abee  v.  Commonwealth,  78  Ky.  380 
(1880)  ;  Collins  v.  Commonwealth,  12 
Bush  (Ky.)  271  (1870)  ;  s.c.  2  Am.  Cr. 
Rep.  282  ;  Leiber  v.  Commonwealth, 
9  Bush  (Ky.)  11  (1872)  ;  Young  v. 
Commonwealth,  6  Bush  (Ky.)  317 
(1869);  Adwell  )\  Commonwealtli,  17 
B.  Mon.  (Ky.)  310  (1850)  ;  Walston 
t;.  Commonwealth,  10  B.  Mon.  (Ky.) 
15  (1855)  ;  State  v.  Newhouse,  39  La. 
An.  863  (1887);  s.c.  2  So.  Rep.  799; 
State  V.  Spencer,  30  La.  An. 362  (1878) ; 
State  V.  Brunetto,  13  La.  An.  45 
(1858)  ;  State  v.  Hannah,  10  La.  An. 
131  (1855);  State  y.  Price,  0  La.  An. 
691  (1851);  Hays  v.  State,  40  Md. 
633  (1874)  ;  Commonwealth  v.  Haney, 
127  Mass.  455  (1879)  ;  Common- 
wealtii  V.  Roberts,  108  Mass.  296 
(1871)  ;  Commonwealth  r.  Carey,  66 
Mass.  (12  Cush.)  240  (1853)  ;  People 
V.  Simpson,  48  Mich.  474  (1882)  ; 
People  V.  Olmstead,  .30  Midi.  431 
(1874)  ;  s.c.  1  Am.  Cr.  Rep.  .301 ;  People 
V.  Knapp,  26  Mich.  112  (1872)  ;  s.c. 
1  Green  Cr.  Rep.  252  ;  State  v.  Canti- 
enij,  .34  Minn.  1  (1885)  ;  s.c.  6  Am. 
Cr.  Rep.  418;  24  N.  W.  Rep.  458; 
Hill  V.  State,  64  Miss.  431  (1880)  ;  s.c. 
1  So.  Rep.  494  ;  Brown  v.  State,  32 
Miss.  433  (1856)  ;  Lewis  v.  State,  17 
Miss.  (9  Smed.  &.  M.)  115  (1847)  ; 
Woodsides  v.  State,  3  Miss.  (2  How.) 
655  (1837)  ;  State  v.  Partlow,  90  Mo. 
608  (1886);  s.c.  59  Am.  Rep.  31;  4 
S.  W.  Rep.  14;  State  v.  Mathes,  90 
Mo.  571  (1880)  ;  s.c.  2  S.  W.  Rep. 
800 ;  State  r.  Rider,  90  Mo.  54  (1880)  ; 
s.c.  1  S.  W.  Rep.  825;  State  v.  Van- 


sant,  80  Mo.  67  (1883);  State  v. 
Johnson,  70  Mo.  121(1882);  State  u. 
Kilgore,  70  Mo.  540  (1879);  State  v. 
Draper,  Qb  Mo.  335  (1877);  s.c.  27 
Am.  Rep.  287  ;  State  v.  McCanon,  51 
Mo.  160  (1872);  State  v.  Simon.  50 
Mo.  370  (1872);  Fitzgerald  v.  State, 
11  Neb.  577  (1881);  s.c.  10  N.  W. 
Rep.  495  ;  Rakes  v.  People,  2  Neb.  157 
(1870)  ;  Peak  v.  Stale,  50  N.  J.  L. 
(21  Vr.)  179  (1888);  s.c.  10  Cr.  L. 
Mag.  528;  12  Atl.  Rep.  701;  Don- 
nelly r.  State,  26  N.  J.  L.  (2  Dutch.) 
463  (1857)  ;  Brotherlon  v.  People,  75 
N.  Y.  159  (1878) ;  s.c.  3  Am.  Cr.  Rep. 
218;  People  v.  Davis,  50  N.  Y.  95 
(1874)  ;  People  v.  Perry,  8  Abb. 
(N.  Y.)  Pr.  N.  S.  27  (1870) ;  Hackett 
V.  People,  54  Barb.  (N.  Y.)  370 
(1806)  ;  People  v.  Green,  1  Den. 
(N.  Y.)  014  (1845)  •  Hunt  u.  People,  3 
Park.  Cr.  Cas.  (N.  Y.)  509  (1857); 
People  V.  Knickerboc'ker,  1  Park.  Cr. 
Cas.  (N.  Y.)  .302  (1851);  People  v. 
Grunzig,  1  Park.  Cr.  Cas.  (N.  Y.)  299 
(1851)  ;  People  v.  Anderson,  2  Wheel. 
Cr.  Cas.  (N.  Y.)  -398  (1824)  ;  State  v. 
Mills,  91  N.  C.  581  (1884);  State  i;. 
Blackburn,  80  N.  C  474  (1879) ;  State 
V.  Poll,  1  Hawks  (N.  C.)  L.  442 
(1821);  s.c.  9  Am.  Dec.  655;  State 
V.  Tilghman,  11  Ired.  (N.  C.)  L.  513 
(1850) ;  State  v.  Shelton,  2  Jones 
(N.  C.)  L.  360  (1855) ;  s.c.  64  Am. 
Dec.  587;  State  v.  Peace,  1  Jones 
(N.  C.)  L.  251  (1854) ;  State  v.  Harper, 
35  Ohio  St.  78  (1878)  ;  s.c.  35  Am. 
Rep.  596;  Bobbins  v.  State,  8  Ohio 
St.  131  (1857)  ;  Montgomery  v.  State, 
11  Ohio,  424  (1842)  ,  State  v.  Gar- 
rand,  5  Oreg.  210  (1874);  State  v, 
Fitzhugh,  2  Oreg.  227  (1867)  ;  Goodall 
V.  Stale,  1  Oreg.  333  (1801);  S.C. 
80  Am.  Die.  396;  Commonwealth 
V.  Railing,  113  Pa.  St.  37  (1886);  s.c. 


442 


MICIDE. 


[CHxVP.  XXII. 


■manner,  tliat  they  were  made  under  the  solemnity  of  that  sanc- 
tion. The  fact  may  be  shown  by  the  direct  language  of  the 
decedent,  or  may  be  inferred  from  his  evident  danger,  or  it 
may  be  shown  by  the  opinion  of  medical  experts  or  other 
attendants,  or  from  his  conduct,  or  from  other  circumstances 


4  Atl.  Rej).  459;  Kane  r.  Common- 
wealth, 10!)  Pa.  St.  541  (1885)  ;  Allison 
r.  Commonwealth,  99  Pa.  St.  17 
(1881) ;  Sullivan  i\  Commonwealth, 
m  Pa.  St.  284  (1880)  ;  Small  v.  Com- 
monwealth, 91  Pa.  St.  304  (1879) ; 
Brown  v.  Commonwealth,  78  Pa.  St. 
321  (1873) ;  s.c.  13  Am.  Rep.  740 ; 
Commonwealth  v.  Williams,  2  Ashm. 
(Pa.)  69  (1839)  ;  Commonwealth  r. 
Murray,  2  Ashm.  (Pa.)  41  (1834)  ; 
State  V.  Belcher,  13  S.  C.  459  (1880) ; 
State  V.  McEvoy,  9  S.  C.  208  (1875)  ; 
State  V.  Ferguson,  2  Hill  (S.  C.)  L. 
619  (1835);  s.c.  27  Am.  Dec.  412; 
State  V.  Quick,  15  Rich.  (S.  C.)  L. 
342  (1868)  ;  State  v.  Freeman,  1 
Speer  (S.  C.)  57  (1842);  Hudson  v. 
State,  3  CoUlw.  (Tcnn.)  355  (1860)  ; 
Smith  V.  State,  9  Humph.  (Tenn.)  9 
(1848)  ;  Nelson  v.  State,  7  Humph. 
(Tenn.)  542  (1847)  ;  Curtis  v.  State, 
14  Lea  (Tenn.)  502  (1884)  ;  Stewart 
V.  State,  2  Lea  (Tenn.)  598  (1879); 
Brakefield  v.  State,  1  Sneed  (Tenn.) 
215  (1853);  Wri<;;ht  v.  State,  41  Tex. 
246  (1874)  ;  Benavides  v.  State,  31 
Tex.  579  (1869);  Burrell  v.  State,  18 
Tex.  713  (1857)  ;  Drake  v.  State,  25 
Tex.  App.  293  (1888) ;  s.c.  7  S.  W. 
Rep.  S68;  Irby  v.  State,  25  Tex.  App. 
203  (1888)  ;  s.c.  7  S.  W.  Rep.  705; 
Ledbetter  r.  State,  23  Tex.  App.  247 
(1887)  ;  s.c.  5  S.  W.  Rep.  220  ;  War- 
ren V.  State,  9  Tex.  App.  619  (1881) ; 
s.c.  35  Am.  Rep.  745;  State  v.  Wood, 
53  Vt.  560  (1881)  ;  State  v.  Patterson, 
45  Vt.  308  (1873)  ;  s.c.  12  Am.  Rep. 
200 ;  1  Green  Cr.  Rep.  490  ;  State  v. 
Center,  35  Vt.  378  (1862)  ;  rur,/ear 
V.  Commonwealth,  83  Va.  51  (1887)  ; 
s.c.  9  Cr.  L.  Ma<?.  788;  Swisher  v. 
Commonwealth,  26  Gratt.  (Va.)  903 
(1875)  ;  s.c.  21  Am.  Rep.  330;  Jack- 
son ('.  Commonwealth,  19  Gratt.  (Va.) 
65()  (1870)  ;  Bull  v.  Commonwealth, 
14  Gratt.   (Va.)   613  (1857);  Hill   v. 


Commonwealth,  2  Gratt.  (Va.)  594 
(1845)  ;  I'ass  v.  Commonwealth,  3 
Leigh  (Va.)  786  (1831)  ;  s.c.  24  Am. 
Dec.  695  ;  Crookham  v.  State,  5 
W.  Va.  510  (1871)  ;  State  v.  Dickin- 
son, 41  Wis.  299  (1877);  State  v. 
Cameron,  2  Chand.  (Wis.)  172  (1850); 
United  States  v.  Woods,  4  Cr.  C.  C. 
484  (1831)  ;  United  States  v.  Vcitch, 
1  Cr.  C.  C.  115  (1803)  ;  Reg.  v.  Spar- 
ham,  25  Up.  Can.  C.  P.  143  (1875); 
Reg.  V.  Smith,  23  Up.  Can.  C.  P.  312 
(1873)  ;  Rex  v.  Mead,  2  B.  &  C.  605 
(1824)  ;    8.C.    9    Eng.    C.    L.    265  ;    4  I 

Dowl.  &  R.  120;  Reg.   v.  Megson,  9  1 

Car.  &  P.  418  (1840)  ;  s.c.  38  Eng.  C. 
L.  249;  Rex  v.  Hay  ward,  6  Car.  &  P. 
157  (1833)  ;  s.c.  25  Eng.  C.  L.  371  ; 
Rex  V.  Crockett,  4  Car.  &  P.  544 
(1831);  s.c.  19  Eng.  C.  L.  641;  Rex 
V.  Van  Butchell,  3  Car.  &  P.  631 
(1829);  s.c.  14  Eng.  C.  L.  752;  Reg. 
r.  Hubbard,  14  Cox  C.  C.  565  (1882)  ; 
Reg.  V.  Bedingfield,  14  Cox  C.  C.  341 
(1882)  ;  s.c.  28  Moak  Eng.  Rep.  587; 
Reg.  V.  Morgan,  14  Cox  C.  C.  337 
(1882) ;  s.c.  28  Moak  Eng.  Rep.  583; 
Reg.  V.  Steele,  12  Cox  C.  C.  168 
(1872)  ;  Reg.  ;;.  Qualter,  6  Cox  C.  C. 
357  (1853)  ;  Reg.  v.  Nicolas,  6  Cox 
C.  C.  120  (1852)  ;  Reg.  v.  Mooney, 
5  Cox  C.  C.  318  (1851)  ;  Reg.  v.  Dal- 
mas,  1  Cox  C.  C.  95  (1844)  ;  Reg.  v. 
Thomas,  1  Cox  C.  C.  52  (1843)  ;  Reg. 
V.  Howell,  1  Den.  C.  C.  1  (1844); 
Reg.  V.  Reaney,  Dears  &  B.  C.  C.  151 
(1856);  Rex  v.  John,  1  East  P.  C. 
357  (1790)  ;  Reg.  v.  Peel,  2  Post.  & 
F.  21  (1860);  Reg.  v.  Whitworth,  1 
Fost.  &  F.  382  (1858)  ;  Reg.  v.  Jen- 
kins, 38  L.  J.  (M.  C.)  82  (1869)  ; 
Reg.  V.  Smith,  12  L.  T.  608  (1865)  ; 
s.c.  L.  &  C.  607  ;  Rex  v.  Woodcock, 
1  Leach  C.  C.  503  (1789)  ;  Errington's 
Case,  2  Lew.  C.  C.  148  (1838) ;  Rex 
V.  Mosley,  1  Moo.  C.  C.  98  (1825). 


SEC.  412.] 


E-VIDENCE  —  COMPETENCE. 


44r, 


of  the  case,  all  of  which  may  be  resorted  to,  in  order  to  ascer- 
tain the  state  of  the  niind  of  the  deceased  at  the  time  the 
declarations  were  made.^  The  reason  such  declarations  are 
admitted  in  evidence  either  for  or  against  the  accused ^  is  that 
the  individual  is  in  constant  expectation  of  immediate  death, 
and  that  by  reason  thereof  all  temptation  to  falsehood  either 
by  reason  of  interest,  hope,  or  fear,  will  be  removed,  and  the 
awful  and  solemn  nature  of  the  situation  is  presumed  to 
impress  the  declarant  more  strongly  with  the  necessity  of  a 
strict  adherence  to  the  truth  than  the  most  solemn  obligation 
of  any  oath  that  can  he  administered  in  a  court  of  justice.'^ 

It  is  thought  that  the  length  of  time  which  elapses  between 
the  making  of  the  declaration  and  the  death  of  the  declarant 
will  not  affect  the  admissibility  of  such  declarations,  although 
it  may  serve  as  one  of  the  exponents  of  tlie  deceased's 
belief  that  his  dissolution  was  or  was  not  impending.*     It  is 


1  People  V.  Fong  All  Sing,  70  Cal. 
8  (1886)  ;  .s.c.  11  Pac.  Kep.  323;  Peo- 
ple V.  Simpson,  48  Mich.  474  (1882)  ; 
s.c.  12  N.  W.  Rep.  C()2  ;  State  i'.  Can- 
tieny,  34  Minn.  1  (1885)  ;  s.c.  24  N. 
W.  Rep.  458;  Fitzgerald  v.  State,  11 
Neb.  577  (1881)  ;  s.c.  10  N.  W.  Rep. 
495  ;  Rex  r.  Spilsbury,  7  Car.  &  P.  187 
(1835);  s.c.  32  Eng.  C.  L.  505;  Rex 
r.  Bonner,  6  Car.  &  P.  386  (1834); 
s.c.  25  Eng.  C.  L.  487;  Rex  v.  Van 
Butchell,  3  Car.  &  P.  631  (1829)  ;  s.c. 
14  Eng.  C.  L.  752.  Rex  v.  John, 
1  East  P.  C.  357,  358  (1790) ,  Rex  v. 
Woodeock,  1  Leach  C.  C.  500  (1789) ; 
Uccr.  V.  Perkins,  2  Moo.  C.  C.  135 
(1840) ;  Rex  v.  Mosley,  1  Moo.  C.  C. 
97  (1825). 

2  It  IS  well  establislied  that  the  dy- 
ing declarations  of  the  deceased  may 
be  admitted  in  evidence  in  favor  of 
the  person  charged  with  causing  the 
death  of  the  person  making  them,  as 
well  as  against  him.  See  Moore  v. 
State,  12  Ala.  764  (1848);  Common- 
wealth V.  Densmore,  94  Mass.  (12 
Allen)  535  (1866) ;  United  States  i'. 
Taylor,  4  Cr.  C.  C.  338  (1833);  Rex 
V.  Schaife,  1  Moo.  &  R.  551  (1836); 
s.c.  2  Lew.  C.  C.  150. 

3  Dunn  V.  State,  2  Ark.  229  (1839) ; 


People  V.  Abbott  (Cal.),  4  Pac.  Rep. 
769  (1884),  aflftrmed  witliout  report, 
66  Cal.;  People  v.  17;(()Ta,  17  Cal.  166 
(18(50)  ;  People  v.  Lee,  17  Cal.  79 
(I860)  ;  State  r.  Oliver,  2  Iloust.  (Del.) 
585  (1855);  Hill  v.  State,  41  Ga.  484 
(1871);  State  v.  Nash,  7  Iowa,  347 
(1858);  Walston  v.  Commonwealth, 
16  B.  Mon.  (Ky.)  15  (1855);  State  v. 
Scott,  12  La.  An.  274  (1857)  ;  Hurd 
V.  People,  25  Mich.  405  (1871) ;  State 
V.  Partlow,  90  Mo.  608  (1886);  s.c.  4 
S.  W.  Rep.  14 ;  Fitzgerald  v.  State,  11 
Neb.  577  (1881)  ;  s.c.  10  N.  W.  Kep. 
495;  Donnelly  (-•.  State,  26  N.  J.  L.  (2 
Dutch)  463  (1857);  People  v.  Davis, 
56  N.  Y.  95  (1874);  Brown  v.  Com- 
monwealth, 73  Pa.  St.  321  (1873); 
Commonwealth  v.  Williams,  2  Ashm. 
(Pa.)  69  (1859);  Commonwealth  v. 
Murray,  2  Ashm.  (Pa.)  42  (1834); 
Benavides  v.  State,  31  Tex.  579 
(1809);  1  Chitt.  Cr.  L.  568,  569;  1 
Gill.  Ev.  280;   1  Leach  C.  C.  502. 

*  1  Greenl.  Ev.  (14th  ed.)  §  158. 

As  to  the  length  of  time  which 
may  elapse  after  the  declaration  is 
made  before  the  death  occurs,  there 
have  been  great  variations;  but  in  all 
those  cases  in  which  the  prospect  at 
the    time    of    the    utterance    was    of 


444 


HOMICIDE, 


[chap.  XXII. 


the  impression  on  the  part  of  the  declarant  of  ahnost  imme- 
diate dissolution  that  gives  any  weight  to  the  declaration 
and  renders  it  admissible  in  evidence.^  But  where  the 
declarant  had  the  slightest  hope  of  recovery,  his  declarations 
are  not  admissible,^  although  he  may  in  fact  have  died  within 
an  hour  afterwards.^ 

Sec.  413.  Same  —  Kansas  doctrine.  —  In  the  case  of 
State  V.  Bohan  *  in  discussing  the  question  of  the  inadmissi- 
bility of  declarations  claimed  to  be  dying  declarations,  the 
court  says  :  "  In  State  v.  Medlicott  ^  the  rule  on  this  point  was 
thus  stated :  '  Such  declarations  therefore  are  admissible  only 
when  the  death  of  the  person  who  made  the  declaration  is 
the  subject  of  the  charge,  and  where  the  circumstances  of  the 
death  are  the  subject  of  the  dying  declaration.'  In  that 
case  the  question  involved  was,  whether  the  deceased  was  in 
the  full  belief  that  he  was  in  articulo  mortis  when  he  made 
the  declaration ;  and  the  attention  of  the  court  was  mainly 
directed  to  that  question,  and  the  part  quoted  need  not  have 
been  stated.  The  court,  therefore,  feels  no  such  embarrass- 
ments on  account  of  what  was  said  in  that  case  as  will  inter- 


speedy  death,  tlie  declaration  has 
been  admitted.  Tims  in  Swisher  v. 
Commonwealth,  20  Gratt.  (Va.)  963 
(1875),  ten  days,  and  in  Common- 
wealth V.  Haney,  127  Mass.  455  (1879), 
four  days,  and  in  Kehoe  v.  Common- 
wealth, 85  Pa.  St.  127  (1877),  two 
days  elapsed,  and  the  declaration  was 
admitted;  while  in  Ex  parte  Nettles, 
58  Ala.  208  (1877),  death  ensued  only 
six  days  after,  but  the  declarant  had 
not  given  up  all  hope,  and  the  declara- 
tion was  rejected. 

1  See  Loijan  v.  State,  9  Humph. 
(Tenn.)  24  (1848)  ;  Smith  v.  State, 
9  Humph.  (Tenn.)  9  (1848)  ;  Rex  v. 
Bonner,  6  Car.  &  P.  386  (1834)  ;  s.c. 
25  Enp:.  C.  L.  487 ;  Tinckler's  Case,  1 
East  P.  C.  354  (1781);  Woodcock's 
Case,  2  Leach  C.  C.  503  (1789) ;  Hex 
I'.  Mosley,  1  Moo.  C.  C.  98  (1825). 

2  May  V.  State,  55  Ala.  39  (1876)  ; 
.Johnson  v.  State,  47  Ala.  9  (1872); 
People  V.  Ah  Dat,  49  Cal.052  (1857); 
People  V.  McLau,i,Milin,  44  Cal.  435 
(,1872);   Scott   v.  People,  63   111.  508 


(1872);  Starkey  v.  People,  17  111.  17 
(1855);  State  v.  Daniel,  31  La.  An. 
91  (1879);  Commonwealth  v.  Roberts, 
108  Mass.  296  (1871);  State  v.  Mc- 
Canon,  51  Mo.  100  (1872);  State  v. 
Blackburn,  80  N.  C.  474  (1879) ;  Ke- 
hoe V.  Commonwealth,  85  Pa.  St.  127 
(1877)  ;  State  v.  McEvoy,  9  S.  C.  208 
(1877) ;  Roberts  v.  State,  5  Tex.  App. 
141  (1879) ;  Swisher  r.  Commonwealth, 
20  Gratt.  (Va.)  963  (1875)  ;  .Jackson 
V.  Commonwealth,  19  Gratt.  (V'a.)  650 
(1870)  ;  Rex  v.  Fagent,  7  Car.  &  P.  238 
(1835) ;  s.c.  .32  Eng  C.  L.  590,  Rex  (,-. 
Hayward,  6  Car.  &  P.  157,  100  (1833)  ; 
s.c.  25  Eng.  C.  L.  371  ,  Rex  v.  Crockett, 
4  Car.  &  P.  544  (1831),  s.c.  19  Eng. 
C.  L.  041 ;  Rex  r.  Christie,  Car.  C.  L. 
232  (1828);  Welbourn's  Case,  1  East 
P.  C.  358,  359  (1792). 

3  People  V.  Hodgdon,  55  Cal.  72 
(1880)  ;  s.c.  30  Am.  Rep.  30. 

*  15  Kan.  407  (1875)  ;  s.c.  2  Am. 
Cr.  Rep.  278. 

G  9  Kan.  283  (1872). 


SEC.  413.]  EVIDENCE — COMPETENCE.  445 

fere  with  a  full  examination  of  the  question  now.  In  1 
Phillips  on  Evidence,  287,  the  rule  is  laid  down  thus :  '  Such 
declarations  are  generally  admissible  only  where  the  death 
of  the  declarant  is  the  subject  of  the  inquiry,  and  where  the 
circumstiyices  of  the  death  are  the  subject  of  the  dying 
declaration.'  And  to  the  same  effect  the  rule  is  laid  down 
in  the  decisions  generally.  In  a  note  to  section  156  of  1 
Greenleaf  on  Evidence,  Mr.  Redfield  states  that  this  evidence 
is  not  received  upon  any  other  ground  than  that  of  necessity, 
in  order  to  prevent  murder  going  unpunished,  and  that  a 
misapprehension  of  the  true  grounds  on  which  such  testimony 
can  be  received  has  sometimes  led  the  courts  into  error,  as  in 
England,  where,  at  one  time,  such  declarations  were  admitted 
in  other  than  murder  cases.  But  those  decisions  have  been 
overruled  as  not  correctly  stating  the  law.  The  admission 
of  this  kind  of  testimony  is  an  exception  to  the  general  rule 
that  excludes  hearsay  testimony.  Its  admission  can  be  justi- 
fied only  on  the  ground  of  absolute  necessity,  growing  out  of 
the  fact  that  the  murderer,  by  putting  the  Avitness,  and 
generally  the  sole  witness  of  his  crime,  beyond  the  power  of 
the  court  by  killing  him,  shall  not  thereby  escape  the  conse- 
quences of  his  crime.  On  no  other  ground  can  the  admission 
of  such  testimony  be  justified.  It  is  true  that  sometimes 
courts  have  given,  as  the  reasons  of  its  admission,  some  of 
those  limitations  that  have  been  established  as  safeguards  to 
prevent  the  rule  from  being  abused.  Such  statements  are 
not  sound,  and  are  likel}^  to  lead  to  confusion,  and  in  some 
they  undoubtedly  liave  done  so.  Necessity,  then,  being  the 
only  ground  on  which  such  testimony  can  be  admitted,  it 
remains  to  be  seen  whether  that  necessity  exists  so  generally, 
or  to  so  great  an  extent,  where  the  death  of  any  one  else 
than  the  declarant  is  the  subject  of  the  inquiry,  as  to  justify 
the  adoption  of  a  rule  admitting  such  testimon3^  Cases  may 
be  suggested  where  the  necessity  appears  to  be  strong. 
Thus  where  a  murder  is  committed,  and  a  material  witness 
of  the  crime,  but  not  affected  by  it,  and  by  whom  alone  it  can 
be  proved,  is  dying,  and  in  that  hour  makes  a  declaration  of 
the  facts  which  he  knows  and  wdiich  took  place  months  before, 
this  declaration  is  made  under  circumstances  equivalent  to 
the  sanction  of  an  oath ;  but  the  accused  cannot  cross-exam- 


446  HOMICIDE.  [chap.  XXII. 

ine,  cannot   call  the    attention  to  other  material  facts  not 
thought  of  by  the  declarant." 

Sec.  414.    Same  —  Scope  of  declarations  —  Illustrations. 

—  Such  declarations  must  constitute   the   res   yestce    of    the 
homicide,  and  not  relate  to  anything  occurring  before  and 
not  immediately  connected  with  it.     In  State  v.  Draper,^  in 
discussing  this  question  the  court  says  that  "  it  seems  to  be 
well-established  law  that  dying  declarations  are    admissible 
as  to  those  facts  and  circumstances  constituting  the  res  gestce 
of  the  homicide,  but  as  to  all  other  matters  occurring  anterior 
to  the  killing,  and  not  immediately  connected  with  it,  they 
are  inadmissible.    In  1  Greenl.  Ev.  §  156,  it  is  said,  'It  is  now 
well  settled  that  dying  declarations  are  admissible  as  such 
only  in  cases  of  homicide,  when  the  death  of  the  deceased  is 
the  subject  of  the  charge,  and  the  circumstances  of  the  death 
are  the  subjects  of  the  dying  declaration.'    We  have  not  been 
able  to  find  any  case  where  such  evidence  has  been  given  a 
wider  scope  than  is  laid  down  in  the  above  rule.     In  the  case 
of  Leiber  v.  Commonwealth,^  it  was  held  that  dying  decla- 
rations should  be  restricted  to  the  act  of  killing,  and  the  cir- 
cumstances immediately  attending  it,  and  forming  a  part  of 
the  res  gesta\     In  that  case  the  declaration  given  in  evidence 
not  only  conduced  to  identify  the  defendant  as  the  perpe- 
trator of   the  homicide,  and  the  circumstances  immediately 
attending  it,  but  it  also  purported  to  disclose  former  and  dis- 
tinct transactions,  from  which  the  jury  might  have  inferred 
malice  on  the  part  of  the  defendant.     In  delivering  the  opin- 
ion, Judge  Ilarebin  says:   'The  court  erred  in  admitting  a 
part  of  the  dying  statements,  however  competent  the  evidence 
may  have  been,  and  for  that  cause,  if  for  no  other,  the  judg- 
ment should  be  reversed.'     In  the  case  of  Moses  (a  slave)  v. 
State,-^  the  defendant  was  charged  with  killing  one  Martin 
Oaks,  an  overseer.     On  the  trial  the  dying  declarations  of 
the  deceased  were  admitted,  giving  the  circumstances  attend- 
i'nor  the  homicide,  in  orivinfj  which  the  deceased  stated  'that 
Moses,  the  defendant,  was  the  only  slave  on  the  plantation 
at  enmity  with  him.'  and  that  '  Moses  was  a  runaway.'     In 

1  G5  Mo.  335  (1877)  ;  s.c.  27    Am.  '•'  D  Bush  (Ky.)  11  (1872). 

Kep.  287.  335  Ala.  421  (1860). 


SEC.  414.]  EVIDENCE —  COMPETENCE.  447 

the  opinion  of  the  court  it  is  said  that  the  declarations  by 
the  deceased,  that  Moses  was  the  only  slave  on  the  place  at 
enmity  witii  him,  and  that  Moses  was  a  runawa}^,  do  not  fall 
within  the  principle  admitting  d3'ing  declarations,  and  the 
court  in  admitting  them  erred.  The  enmity  of  the  defendant 
toward  the  deceased,  of  which  previous  threats  and  previous 
attempts  to  commit  the  same  act  would  have  been  evidence 
in  the  case,  pointing  to  the  accused  as  the  guilty  party,  was 
a  fact  extrinsic  to  the  circumstances  attending  the  homicide, 
and  the  judgment  was  reversed  for  that  error.^  In  the  case 
of  State  V.  Shelton^  the  deceased,  in  making  his  dying  decla- 
rations, stated  that  two  or  three  hours  before  the  rencounter, 
in  which  he  received  the  blow  which  caused  his  death,  he 
had  had  a  difficulty  and  quarrel  with  the  defendant.  The 
latter  declaration  was  admitted,  and  for  the  error  in  admitting 
it  the  judgment  was  reversed  and  a  new  trial  awarded,  the 
court  holding  that  dying  declarations  must  be  restricted  to 
the  act  of  killing,  and  the  circumstances  immediately  attend- 
ing the  act  and  forming  a  part  of  the  res  gestce.  In  the  case 
of  Nelson  v.  State,^  the  defendant  was  indicted  and  convicted 
for  the  murder  of  one  Sellers.  On  the  trial  the  following 
dying  declarations  of  deceased  were  admitted:  'That  Nelson, 
the  prisoner,  had  stabbed  him ;  that  Nelson  had  tried  to  kill 
him  two  or  three  times  before.'  It  was  held  that  dying 
declarations  were  admissible  from  the  necessity  of  the  case 
to  identify  the  prisoner  and  establish  the  circumstances  of 
the  res  gestce^  or  direct  transaction  from  which  death  results. 
When  they  relate  to  former  and  distinct  transactions,  they  do 
not  come  within  the  principles  of  necessity.  In  the  case  of 
Hackett  v.  People,^  the  dying  declarations  of  deceased  were 
admitted.  They  contained  not  only  an  account  of  the  tran.s- 
actions  which  terminated  in  the  death  of  the  deceased,  but 
also  other  facts,  and  among  them  the  statement  '  that  Hack- 
ett, the  defendant,  had  often  threatened  to  kill  him,'  The 
prisoner's  counsel  objected  to  reading  the  whole  statement, 
admitting  that  a  portion  might  be  read.  The  objection  was 
overruled.     Judge  Ingraham,  who  delivered  the  opinion  of 

1  Ben  V.  State,  37*  Ala.  103  (1861)  ;  ^  7  Humph.  (Tenn.)  542  (1847). 
Jolinson  f.  State,  17  Ala.  018  (1850).  *  54  Barb.  (N.  Y.)  370  (18(56). 

2  2  Jones  (N.  C.)  L.  360  (1855). 


448  HOMICIDE.  [chap.  XXII. 

the  court,  in  speaking  of  that  portion  of  the  declaration  in 
which  the  deceased  stated  '  that  Hackett  had  often  threatened 
to  kill  him,'  observed  that  '  this  statement  was  clearly  open 
to  the  objection  that  it  did  not  relate  to  the  transaction  from 
which  the  deatli  resulted,'  and  adds  that  its  effect  on  the  jury 
may  have  been  injurious.  The  prisoner  was  on  trial  for  his 
life,  and  the  whole  question,  whether  he  could  be  convicted 
of  murder  in  the  first  degree,  was  to  be  decided  by  proof  of 
prior  ill-will,  or  prior  cause  for  a  premeditated  act.  It  seems 
to  me  to  be  a  dangerous  precedent  to  extend  the  rule  which 
admits  dying  declarations,  made  under  conviction  tliat  the 
party  must  die,  beyond  the  immediate  transactiouo  which  led 
to  his  death.  The  evidence  referred  to  should  not  have  been 
received  and  the  judgment  should  be  reversed.  The  limits 
prescribed  to  the  admissibility  of  dying  declarations  in  the 
rule  as  laid  down  by  Greenleaf,i  and  as  illustrated  in  the 
adjudicated  cases  above  alluded  to,  in  which  the  rule  has  been 
applied,  necessarily  lead  to  a  reversal  of  the  judgment  in  this 
case,  practically  on  the  ground  that  only  such  of  Gilbert's 
dying  declarations  as  related  to  the  killing  and  the  facts  and 
circumstances  attending  it,  and  constituting  a  part  of  the  res 
(jestce,  should  have  been  allowed  to  go  to  the  jury." 

Sec.  415.    Same  —  Test  of  admissibility  —  Belief  in   im- 
pending- death.  —  The  full  belief  in  impending  death  -  is  the 

1  1  Greenl.  Ev.  (14th  ed.)  §  156.  person  as  the  person  who  attacked 
■^  At  the  trhil  of  the  defendant  upon  him  ;  (2)  the  statements  made  by  H. 
an  indictment  for  the  murder  of  one  after  he  arrived  at  the  witness's  house 
H.,  a  witness  for  the  crown  swore  were  admissible  as  part  of  the  res 
upon  direct  examination  tliat  H.  lived  gesta' ;  (3)  that  such  statements,  or 
about  thirty  rods  from  him,  and  tiiat  some  of  them,  were  admissible  as 
one  niofht  about  half  an  hour  after  dying  declarations.  Held,  (1)  that 
lie  had  heard  shots  in  the  direction  of  the  admission  of  evidence  of  a  com- 
H.'s  house,  H.  came  to  the  witness's  plaint  having  been  made  ought  prop- 
house  and  asked  the  witness  to  take  erly  to  be  confined  to  rape  and  its 
him  in.  for  he  was  shot.  The  witness  allied  offences:  but  even  if  such  evi- 
did  $0,  and  H.  died  there  some  hours  dencc  is  admissible  in  other  cases,  it 
afterwards.  Evidence  of  statements  can  only  be  so  where  the  person  mak- 
made  by  U.  after  being  taken  into  the  ing  the  complaint  has  been  e.x'amined 
witness's  house  was  rejected.  Upon  a  as  a  witness;  and  moreover  in  this 
case  reserved  it  was  contended  on  be-  case,  when  II.  asked  the  witness  to 
lialf  of  the  defendant,  (1)  that  coun-  take  him  in,  for  he  was  shot,  he  was 
sel  for  the  defendant  was  entitled  to  not  making  a  complaint  at  all,  but 
ask  tlie  witness  in  cross-e.xnmination  merely  assigning  a  reason  for  asking 
whether  H.  mentioned  any  particular  to  be  taken  in,  and  the  question  pro- 


SEC.  415.]  EVIDENCE  —  COMPETENCE.  449 

true  and  the  only  test  of  the  admissibility  in  evidence  of 
such  declarations  ;  but  it  is  thought  that  this  does  not  necessi- 
tate proof  of  apprehensions  of  immediate  death,  if  it  be  clearly 
shown  that  the  deceased  had  no  expectation  of  surviving  the 
injury  inflicted  by  defendant.^  But  statements  offered  as 
dying  declarations  are  not  admissible  merely  because  made 
after  being  told  that  the  wound  was  necessarily  fatal,  unless 
accompanied  by  proof  tliat  this  information  deprived  the  de- 
clarant of  the  expectation  of  recovery .^  There  is  no  par- 
ticular mode  prescribed  for  the  proof  of  this  condition  of  the 
mind  of  the  deceased;  and  it  may  be  shown  in  any  way 
which  the  court  deems  sufficient,  either  by  proof  of  expres- 
sions by  the  deceased  of  his  conviction  that  he  would  die,^  or 
by  other  circumstances  of  the  case ;  *  or,  as  far  as  may  be,  in 
the  absence  of  better  evidence,  by  the  length  of  time  elapsing 
betAveen  the  making  of  the  declaration  and  the  declarant's 
death  .4 

The  admissibility  of  dying  declarations  does  not  at  all 
depend  upon  the  amount  of  other  evidence  for  the  prosecu- 
tion, but  they  are  admissible,  even  if  there  be  little  or  no 
additional  evidence  of  the  killing.^  Nor  does  it  depend  upon 
the  kind  of  defence  set  up ;  whether  the  defendant  pleads 
insanity,  self-defence,  or  an  alibi,  the  same  rule  governs  the 
admission  of  d3dng  declarations  in  evidence  against  him.** 
But  where  several  were  killed  in  an  affray,  and  the  defendant 

posed  to  be  asked  was  not  relevant ;  (1886)  ;  s.c.  1   So.  Eep.  577 ;  State  v. 

(•2)   that  the  statements  made  by  H.  Schmidt,  73  Iowa,  469  (1887)  ;  s.c.  35 

after  he  was  taken  into  the  house  were  N.  W.  Rep.  590  ;  State  v.  Newhouse, 

not  admissible  as  res  gestce,  being  made  39  La.  An.  862  (1887)  ;   s.c.  2  So.  Rep. 

after   all   action    on    the  part  of   the  799. 

wrong-doer  had   ceased   through   tlie-  ^  gee  State  v.  Partlow,  90  Mo.  608 

completion  of  the  principal  act,  and  (1886)  ;    s.c.  59  Am.  Rep.  31 ;  4  S.  W. 

after  all  pursuit  or  danger  had  ceased.  Rep.  14. 

Reg.    V.    Bedingfield,    14     Cox,    341 ;  »  Jordan  v.  State,  82  Ala.  1  (1886)  ; 

Reg.    V.    Goddard,    15    Cox,   7,    fol-  s.c.  1  So.  Rep.  577  ;   State  i:  Sclnnidt, 

lowed;    (3)   that  upon   the    evidence  73  Iowa,  409   (1887);   g.c.  35  N.  W. 

the    statements    made    by    H.    after  Rep.  590. 

being  taken  into  the  house  were   not  ■*  State    v.    Schmidt,   73  Iowa,  469 

made    under    a    settled    hopeless    ex-  (1887)  ;  s.c.  35  N.  W.  Hep.  590. 

pectation    of  death,  and  vvere,  there-  ^  Luker  r.   Commonwealth   (Ky.), 

fere,  not  admissible  in  evidence  as  a  5  S.  W.  Rep.  354  (1887). 

dying  declaration.     Reg.  c.  McMahon  "^  Boyle  v.  State,  105  Ind.  469  (1885); 

(U.  C.  H.  C),  26  Can.  L.  J.  88  (1890).  s.c.  5  N.  E.  Rep.  203. 
1  See  Jordan   v.   State,  82   Ala.   1 

29 


460  HOMICIDE. 


[chap.  XXII.    1 


is  indicted  for  the  homicide  of  one  of  them,  dying  declarations 
of  the  others  who  were  killed  are  not  admissible.^ 

The  fact  that  a  declaration  is  part  in  writing  and  partly 
parol  cannot  be  made  ground  for  an  objection  to  it.^  The 
weight  of  dying  declarations  admitted  in  evidence  is  a  ques- 
tion for  the  determination  of  the  jury.  The  theory  upon 
which  dying  declarations,  being  mere  hearsay,  are  made 
admissible  is  that  when  an  individual  is  in  constant  expecta- 
tion of  impending  death,  all  temptation  or  inducement  to 
falsehood  is  removed,  and  the  solemnity  of  his  situation  is 
supposed  to  impress  him  as  strongly  with  the  necessity  of 
strict  truthfulness  as  the  obligation  of  a  judicial  oath  ;  but 
the  circumstances  attending  and  immediately  surrounding 
the  making  of  such  declarations  —  the  absence  of  all  cross- 
questioning,  the  presence,  usually,  of  only  friends  and  sym- 
pathizers, whose  interest  in  the  affair  is  identified  with  that 
of  the  deceased  — together  with  the  likelihood  of  feebleness 
of  mind  and  misunderstanding,  all  create  an  element  of 
uncertainty  as  to  the  proper  weight  of  such  declarations 
which  necessarily  makes  the  degree  of  such  weight  a  ques- 
tion of  fact  in  each  particular  case  ;  and  it  is  error  to  instruct 
the  jury  that  the  credibility  of  the  dying  declarations  is  to  be 
measured  by  the  weight  which  the  testimony  of  the  declarant 
would  have  received  had  he  been  present  and  testified  at  the 
trial.'^  And  it  is,  therefore,  competent  to  show  any  fact  or 
circumstance  which  would  probably  impair  the  credit  of  dec- 
larations made  by  the  deceased  in  the  belief  of  approaching 
death,  as,  for  instance,  his  lack  of  religious  belief,  and  conse- 
quent rejection  of  all  faith  in  the  doctrine  of  future  rewards 
and  punishments.* 

Sec.  416.  Same  —  Statinj?  a  fact  or  expressing?  an  opin- 
ion.—  In  Commonwealth  v.  Matthews,^  on  a  trial  for  man- 
slaughter, declarations  of  the  deceased  that  he  and  the  accused 
were  playing,  and  that  the  shooting  was  an  accident,  were 
said  to  be  statements  of  facts,  and  not  matter  of  opinion,  and 

1  State  V.  Fitzhugh,  2  Oreg.  227  "  See  State  v.  Mathcs,  00  Mo.  571 
(1867).  (1880)  ;  s.c.  2  S.  W.  Kep.  800. 

2  State  I).  Sdiniidt,  73  Iowa,  4G!)  "  Hill  r.  State,  04  Miss.  431  (1880); 
(1887)  ;  s.c.  35  N.  W.  Rep.  590.  s.c.  1  So.  Rep.  404. 

i  12  S.  W.  Kep.  (Ky.)  333   (1889). 


SEC.  416.]  EVIDENCE  —  COMPETENCE.  451 

were  competent  as  dying  declarations.  The  accused  was 
allowed,  over  the  objection  of  the  commonwealth,  to  prove 
as  a  dying  declaration,  what  the  injured  party  said  after  the 
shooting,  as  to  the  circumstances  of  it.  It  was  urged  on 
appeal  that  the  proper  foundation  was  not  laid  for  the  intro- 
duction of  this  evidence,  and  that  the  statement  was  in  itself 
incompetent.  The  court  say :  "  It  was  proven  that  about 
fifteen  minutes  after  he  was  shot,  the  deceased,  when  lying 
upon  the  ground  bleeding  and  suffering,  said  that  he  hoped 
he  would  live  long  enough  to  take  the  gun  home,  and  that 
he  died  in  about  twenty  minutes.  The  witness  says  that  he 
did  not  say  whether  he  believed  he  would  die  or  recover,  and 
that  he  (the  witness)  did  not  know  whether  he  was  conscious 
or  not  when  he  made  the  statement.  It  is  well  settled  that 
a  statement,  to  be  admissible  as  a  dying  declaration,  must  be 
made  when  the  party  is  in  extremis,  and  has  given  up  all 
hope  of  this  life  ;  but  whether  this  be  so  or  not  may  be 
determined,  not  only  by  what  he  may  say,  but  by  his  evident 
danger  and  the  surrounding  circumstances.  The  injured 
party  need  not,  in  express  words,  declare  that  he  knows  he 
is  about  to  die,  or  make  use  of  equivalent  language.^  Tested 
by  this  rule,  we  think  the  statement  in  this  instance  was 
made  under  a  sense  of  impending  death,  and  that  what  the 
injured  party  then  said  also  shows  he  was  conscious,  not  only 
of  it,  but  of  what  he  was  saying  as  to  the  transaction.  The 
statement,  in  substance,  was  that  he  and  the  accused  were 
playing,  and  that  it  was  an  accident.  To  be  competent  as  a 
dying  declaration,  the  statement  must  not  only  relate  to  the 
immediate  circumstances  of  the  transaction  resulting  in  the 
injury,  but  it  must  detail  facts,  and  not  the  opinion  of 
the  declarant.  In  our  opinion,  the  statement  in  this  instance 
conforms  to  this  rule.  It  is  unlike  the  case  where  the  injured 
party  declared  that  he  had  been  killed  for  nothing.  This 
was  purely  his  opinion  and  inference.  Here  the  injured  man 
said  that  he  and  the  accused  were  engaged  in  play,  and  that 
the  shooting  was  an  accident.  This,  in  our  opinion,  was  the 
statement  of  a  fact,  more  than  the  giving  of  an  opinion,  and 
the  court  properly  permitted  it  to  be  proven." 

1  Peoples  V.  Commonwealth,  87  Ky.  487  (1888) ;  s.c.  9  S.  W.  Rep.  509. 


45"2  HOMICIDE.  [CKAP,  XXII. 

Sec.  417.    Same  —  Reducing     declaration     to     writing, 

etc.  —  In  Hines  v.  Commonwealth  ^  the  Court  of  Appeals  of 
Kentucky   held  that  where  a  dying   declaration  was  made, 
reduced  to  Avriting  and  sworn  to  by  the  declarant,  but  the 
accused   procures   the   rejection   of   the  writing,   he    cannot 
object  to  oral   testimony  detailing  what  the  deceased  then 
said,  provided  it  be  shown  that  the  statements  were  made 
under  conditions  rendering  them  admissible  as  a  dying  dec- 
laration.    The  court  said  :  "  The  authorities  are  not  altogether 
in  harmony,  whether  if  a  dying  declaration,  when  made,  be 
reduced  to  writing,  parol  evidence  may  be  given  as  to  the 
declaration,  although  the  writing  be  within  the  power  of  pro- 
duction by  the  party  offering  the  oral  evidence.     Wharton 
says,  however,  that  '  if  the  declaration  of  the  deceased,  at  the 
time  of   his  making  it,  be  reduced  to  writing,   the  written 
document  must  be  given  in  evidence,  and  no  parol  testimony 
respecting  its  contents  can  be  admitted.     And  if  a  declara- 
tion in  artlculo  mortis  be  taken  down  in  writing,  and  signed 
by  the  party  making  it,  the  judge  will  neither  receive  a  copy 
of  the  paper  in  evidence,  nor  will  he  receive  parol  evidence 
of  the  declaration.'  ^     Russell  says  :  'If  the  statement  of  the 
deceased   was  committed  to  writing,  and   signed  by  him  at 
the    time  it  was  made,  it  has  been  held  essential  that   the 
writing  should  be  produced,  if  existing,  and  that  neither  a 
copy  nor  parol  evidence  of  the  declaration  can  be  admitted 
to  supply  the  omission.'  ^    It  seems  that  where  a  dying  decla- 
ration is  made  and  reduced  to  writing,  and  sworn  to  by  the 
declarant,  as  in  this  instance,  it,  under  the  rule  that  the  best 
evidence  the  case  admits  of  must  be    produced,   should,  if 
within  the  power  of  the  party,  be  produced.     But  where  the 
accused  for  any  reason  procures  the  rejection  of  the  writing, 
as'he  did  in  this  case,  it  does  not  lie  in  his  mouth  to  object 
to  oral   testimony   detailing    Avhat   the    deceased    then   said, 
provided  it  be  shown   that  the  statement  was  made  under 
the  conditions  necessary  to  render  a  statement  admissible  as 
a    dying    declaration.     The    statement   proven    by    the    first 
witness  and  that  by  the  last  one  were  substantially  the  same. 

1  41  Alb.  L.  J.  iOr,  (1S90).  3  2  Russ.  Cr.  762. 

2  I  Whiirt.  Cv.  L.  §  fJTO. 


SEC.  418.]  EVIDENCE COMPETENCE.  453 

The  accused  was  not  therefore  prejudiced  by  proving  both; 
but  in  any  event,  we  think  both  were  competent.  The  first 
one  was  not  reduced  to  writing;  and  where  an  injured  party 
makes  statements  at  different  times,  we  see  no  reason  they 
all  may  not  be  proven,  if  all  be  made  under  a  sense  of  im- 
pending death.  If  in  accord,  they  serve  to  show  the  truth 
of  the  statement;  and  if  not,  then  the  accused  will  be  benefited 
by  the  contradiction.  In  either  case  they  are  said  to  elucidate 
the  truth.  In  Russell  on  Crimes,  p.  763,  it  is  said:  'It 
is  no  objection  to  the  admission  of  a  dying  declaration  that 
the  deceased  made  a  subsequent  statement  to  a  magistrate, 
which  was  taken  down  in  writing,  and  is  not  produced. 
In  the  case  of  Rex  v.  Reason  ^  three  several  declarations  had 
been  made  by  the  deceased  in  the  course  of  the  same  day  at 
the  successive  intervals  of  an  hour  each.  The  second  had 
been  made  before  a  magistrate  and  reduced  into  writing,  but 
the  others  had  not.  The  original  written  statement  taken 
before  the  magistrate  was  not  produced,  and  a  copy  of  it  was 
rejected.  A  question  then  arose  whether  the  first  and  third 
declarations  could  be  received,  and  Pratt,  C.  J.,  was  of  opinion 
that  they  could  not,  since  he  considered  all  three  statements 
as  parts  of  the  same  narrative,  of  which  the  written  examina- 
tion was  the  best  proof ;  but  the  other  judges  held  that  the 
three  declarations  were  three  distinct  facts,  and  that  the 
inability  to  prove  the  second  did  not  exclude  the  first  and 
third,  and  evidence  of  those  declarations  was  accordingly 
admitted.'" 

Sec  418.  Same  —  Time  of  declaration.^ — ^  There  is  no 
prescribed  limit  as  to  the  time  before  death  in  which  the 
dying  declarations  must  have  been  made  in  order  to  be  admis- 
sible in  evidence  as  such.  Tlie  question  as  to  declarant's  full 
belief  of  impending  death  is  one  to  be  determined  according 
to  all  the  facts  and  circumstances  of  each  particular  case,  as 
they  may  appear  or  be  shown  to  the  court,  upon  hearing  the 
preliminary  proof  upon  which  their  admission  is  souglit  to 
be  predicated.^     Thus  a  declaration  by  a  dying  man  as  to  the 

1  1  Str.  499.  Pac.    Rep.  S?> ;    People    v.   Brady,   72 

2  See  Jonion  v.  State,  82  Ala.  1  Cal.  490  (1887) ;  s.c.  14  Pac.  Rep. 
(1880)  ;  s.c.  2  So.  Rep.  4(50;  People  v.  202;  People  v.  Lee  Sare  Bo,  72  Cal. 
Ramirez,  73  Cal.  403  (1887);  s.c.  15  023    (1887);   s.c.    14   Pac.  Kep.  310; 


454  HOMICIDE.  [chap.  XXII. 

manner  in  which  he  came  by  his  death,  made  within  three  or 
four  minutes  before  his  death,  and  about  the  same  time  as  a 
statement  by  liim  that  he  was  going  to  die,  is  admissible  in 
evidence  as  a  dying  declaration,  whether  it  was  made  before 
or  after  the  statement  that  he  knew  he  was  going  to  die,  as 
all  the  circumstances  showed  in  him  at  the  time  a  knowledge 
of  impending  death.^  And  it  is  said  in  the  case  of  Puryear 
V.  Commonwealth  ^  that,  on  a  trial  for  murder,  evidence  that 
the  deceased,  while  in  the  agonies  of  death,  which  quickly 
followed,  charged  the  accused,  her  husband,  who  was  present, 
with  having  killed  her  by  poison  administered  in  whiskej^  a 
short  time  before,  is  admissible  as  a  dying  declaration.  In 
State  V.  Johnson^  the  declarations  of  the  murdered  man, 
made  after  he  was  found  insensible,  and  shortly  before  he 
died,  as  to  who  had  assaulted  and  robbed  him,  were  given  in 
evidence  by  his  wife,  who  nursed  him,  and  who  testified  at 
the  time  they  were  made  her  husband  "  knew  he  was  going 
to  die."  The  wife  was  not  cross-examined  as'  to  that  point, 
and  there  was  nothing  in  the  record  to  impeach  her  knowl- 
edge of  her  husband's  then  state  of  mind.  The  declarations 
were  held  to  be  admissible.  In  Walton  v.  State  ^  <^lyiiig  decla- 
rations were  held  to  have  been  properly  admitted  where  they 
were  made  within  an  hour  of  the  death  of  the  deceased,  after 
his  physicians  had  told  him  that  there  was  no  more  than  one 
chance  in  a  hundred  that  he  would  recover,  and  asked  him  if 
he  had  any  statement  to  make,  and  where  the  deceased  had, 
shortly  after  he  Avas  stabbed,  stated  that  he  was  going  to  die. 
In  Jordan  v.  State  ^  the  declarations  of  the  deceased,  made 
about  two  hours  after  receiving  the  wounds  which  proved 
fatal,  and  before  the  arrival  of  the  physician,  tliat  "  J.  shot 
me,  and  H.  cut  me,  and  all  for  nothing,"  were  properly  ad- 
mitted as  evidence,  on  the  testimony  of  the  witness  that  the 

Bryant  v.  State,  80  Ga.  272  (1887)  ;  i  People   »;.   Lee  Sarc  Bo,  72  Cal. 

s.c.  4  S.  E.  Rep.  853;  State  v.  John-  623  (1887);  s.c.  14  Pac.  Rep.  310. 

son,   72   Iowa,    393    (1887);    s.c.   34  233  Va.  51   (1887);  s.c.  9  Cr.  L. 

N.  W.  Rep.  177  ;  Peoples  v.  Common-  Mag.  788;  1  S.  E.  Rep.  512. 

wealth,   87    Ky.   487    (1888);    s.c.   9  »  72  Iowa,  393  (1887);   s.c.  34   N. 

S.  W.  Rep.  509 ;  Luker  v.  Common-  W.  Rep.  177. 

wealth  (Ky.)  5  S.W.  Rep.  354  (1887);  *  79   Ga.  446  (1887);  s.c.  5  S.  E. 

Puryear    v.    Commonwealth,    83    Va.  Rep.  203. 

51   (1887)  ;  s.c.  9  Cr.  L.  Mag.  788;  1  »  82  Ala.  1  (1886)  ;  s.c.  2  So.  Rep. 

S.  E.  Rep.  512.  460. 


SEC.  419.]  EVIDENCE  —  COMPETENCE.  455 

deceased  said  just  before,  "he  did  not  think  he  would  get 
well,"  although  the  witness  declared  to  him  his  own  opinion 
that  he  would  recover.  In  People  v.  Brady,^  on  the  day  after 
the  deceased  was  wounded,  when  a  physician  had  stated  in 
his  hearing  that  his  wound  was  mortal,  and  that  he  was  going 
to  die,  and  he  had  announced  repeatedly  that  he  had  no  hope 
of  recovery,  he  made  a  statement  before  a  justice  of  the  peace, 
in  the  presence  of  several  persons,  which  was  taken  down  by 
a  reporter  in  shorthand,  written  out,  read,  and  assented  to 
by  the  deceased,  who  signed  and  swore  to  it,  and  died  soon 
after.  The  statement  was  held  to  be  admissible  in  evidence 
as  a  dying  declaration,  it  not  appearing  that  there  were  any 
questions  put  or  answers  given,  after  the  statement  had  com- 
menced, which  did  not  appear  in  it  as  presented,  or  that  any- 
thing was  said  by  the  deceased  previous  to  the  formal  dying 
declaration  which  conflicted  with  it.  In  Bryant  v.  State  ^  it 
is  held  that  evidence  that  a  witness  saw  the  deceased  five 
days  before  he  died  and  the  deceased  said  he  was  going  to 
die,  and  stated  that  a  number  of  men  had  taken  him  into  the 
woods  and  whipped  liim  with  a  buggy  trace,  and  that  the 
defendant  was  one  of  them,  is  competent.  And  in  Luker  v. 
Commonwealth,^  upon  a  trial  for  homicide,  a  witness  testified : 
"  I  asked  the  deceased  if  he  was  much  hurt.  He  said,  '  I  am 
killed.'  Asked  him  if  he  knew  who  did  it.  Said,  '  Yes, 
Charley  Luker ' ;  said  "  We  had  no  fuss.'  "  The  court  held 
that  this  statement  of  the  deceased,  including  the  clause,  "  We 
had  no  fuss,"  relating  directly  to  the  act  of  killing,  and  the 
evidence  showing  that  the  deceased  was  at  the  time  mortally 
wounded,  and  fully  conscious  of  approaching  death,  the  state- 
ment was  admissible  as  a  dying  declaration. 

Sec.  419.  Same  —  Form  of.  —  No  particular  form  is 
necessary  to  render  a  dying  declaration  valid  and  admissible 
in  evidence,  so  it  fills  all  the  requisites  for,  and  is  bona  fide  a 
dying  declaration.  In  People  v.  Ramirez*  a  dying  declara- 
tion commenced,  "  I,  A,  believing  I  am  about  to  die,  do 
make  this,  my  dying  statement."     The  surgeon  who  attended 

1  72  Cal.  490  (1887)  ;  s.c.  14  Pac.    3  5  g.  W.  Rep.  (Ky.)  354  (1887). 
Rep.  202.  4  73  Cal.  403  (1887) ;  s.c.  15  Pac. 

2  80  Ga.  272  (1887) ;  s.c.  4  S.  E.  Rep.  33. 
Rep.  853. 


456  HOMICIDE.  [chap.  XXII. 

the  deceased  testified  to  his  condition,  and  the  cliaracter  of 
his  wounds,  and  that  on  the  day  before  the  declaration  was 
made  witness  informed  the  deceased  that  he  was  going  to  die, 
and  that  thereupon  the  deceased  expressed  a  wish  to  make  a 
dying  dechT,ration ;  and  sucli  declaration  was  held  admissible. 

Sec.  420.  Evidence  of  cliaracter,  disposition,  and  habits 
of  deceased  —  Proof  by  prosecution.  — In  a  prosecution  for 
homicide  it  is  not  competent  for  the  prosecution  to  show  the 
peaceable  disposition  or  character  of  the  deceased,  or  his  good 
reputation,  except  in  rebuttal,  when  it  has  been  assailed  by 
the  defence  ;  for  it  is  to  be  presumed,  until  otherwise  shown, 
that  the  character,  disposition,  or  habits  of  the  person  killed 
had  no  influence  upon  the  defendant  in  committing  the  homi- 
cide.^ And  the  court  should  not  allow  the  prosecution  to 
prove,  against  the  objection  of  the  defence,  tliat  the  deceased 
was  not  in  fact  a  dangerous  man.  His  reputation  may  be 
proved  where  the  circumstances  of  the  case  render  it  doubtful 
whether  the  homicide  was  committed  in  self-defence,  in  order 
to  show  that  the  defendant  may  reasonably  have  believed 
himself  in  danger ;  but  his  actual  character  is  not  material  in 
this  connection.2  In  Thomas  v.  People  ^  the  crime  charged 
was  committed  in  state's  prison,  where  the  prisoner  and  the 
deceased  were  confined.  The  prisoner  gave  evidence  to  show 
that  the  character  of  the  deceased  before  he  came  to  the 
prison  was  bad;  that  he  was  quarrelsome  and  vindictive. 
The  prosecution  then  called  witnesses,  who  were  permitted 
to  testify,  under  objection,  that,  in  the  respects  stated,  his 
character,  while  in  prison,  was  good.      The   court  held   on 

1  Ben  r.  State,  37  Ala.  103  (1861);  butt,  17  Mich.  9   (18G8)  ;  s.c.  97  Am. 

B.C.  1  Ala.  Sel.  Cas.9;  Pounds.  State,  Dec.  162;   Law.  liisan.  463;  Chase  ?-. 

43  Ga.  88   (1871);  State  v.  Hockett,  State,  40  Miss.  683   (1872);  State  v. 

70   Iowa,   442    (1886);    s.c.  9  Cr.   L.  Hogue,  G  Jones  (N.  C.)  L.  381  (1859); 

Mag.  208;  30  N.  W.  Rep.  742;  State  State  v.  Pearce,  15  Nev.  188   (1880); 

U.Potter,  13  Kan.  414  (1874);  Graves  Thomas    r.    People,    67    N.     Y.    218 

V.   State,   14   Tex.    App.    113    (1884).  (1876).     Compare  Dukes  v.   State,  11 

See    Jackson     v.    State,    77    Ala.    18  Ind.    557    (1858);    s.c.    71   Am.    Dec. 

(1884);    Franklin    v.   State,    29    Ala.  370;  Russell  i:  State,  11   Tex.   App. 

14    (1856);    People  v.  Bezy,  67  Cal.  288(1882). 

223    (1885)  ;    People  v.  Anderson,  .39  2  People  v.  Anderson,  39  Cal.  703 

Cal.  703   (1870);    People  i;.  Lombard,  (1870). 
17  Cal.  316  (1861)  ;  People  r.  Murray,  ^  (jy  n.  y.  218  (1876). 

10   Cal.    309    (1858);   People  r.  Gar- 


SEC.  421. J 


EVIDEXCE COMPETENCE. 


457 


appeal  that  there  was  no  error  in  the  admission  of  the  testi- 
mony.^ 

Sec.  421.  Same  —  Proof  by  defence.  —  The  reputation  of 
the  deceased  as  a  violent,  quarrelsome,  turbulent,  dangerous, 
and  vindictive  man,  or  of  his  habit  of  going  armed,  is 
admissible  under  the  plea  of  self-defence  where  the  evidence 
does  not  conclusively  show  that  the  defendant  was  solely  in 
fault,  and  that  he  had  no  reason  to  fear  that  his  life  or  safety 
was  in  danger  from  the  deceased.^     Thus  in  a  prosecution  for 


1  Where  evidence  was  offered  to 
show  that  the  defendant  while  in  tlie 
army  was  reputed  a  good  and  valiant 
soldier,  this  was  held  to  be  irrelevant 
in  People  v.  Garbutt,  17  Midi.  9(1808) ; 
s.c.  97  Am.  Dec.  162  ;  Law  Insan.  460. 

2  See  Lang  v.  State,  84  Ala.  1 
(1887)  ;  s.c.  5  Am.  St.  Rep.  324;  4  So. 
Rep.  193;  Williams  v.  State,  74  Ala. 
18  (1883)  ;  Bowles  v.  State,  58  Ala. 
335  (1877)  ;  Eiland  v.  State,  52  Ala. 
322  (1875) ;  Dupree  v.  State,  33  Ala. 
380  (1859)  ;  73  Am.  Dec.  422  ;  Frank- 
lin V.  State,  29  Ala.  14  (1856)  ;  Camp- 
bell V.  State,  38  Ark.  498  (1882); 
People  V.  Moan,  65  Cal.  532  (1884)  ; 
People  V.  Lombard,  17  Cal.  316 
(18G1);  People  v.  Murray,  10  Cal. 
309  (1858)  ;  May  v.  People,  8  Colo. 
216  (1885)  ;  s.c.  6  Cr.  L.  Mag.  692 ; 
6  Pac.  Kep.  816;  Jones  v.  People,  6 
Colo.  453  (1882) ;  s.c.  45  Am.  Rep. 
526;  Drake  1-.  State,  75  Ga.  413  (1885); 
Doyal  r.  State,  70  Ga.  134  (1883); 
Pound  V.  State,  43  Ga.  88  (1871); 
Bond  V.  State,  21  Fla.  738  (1886) ; 
People  V.  Stock,  1  Idaho  N.  S.  218 
(1868);  Patterson  v.  State,  66  Ind. 
185  (1879)  ;  Fahnestock  v.  State,  23 
Ind.  23  (1804);  State  v.  Hockett,  70 
Iowa,  442  (1886);  s.c.  9  Cr.  L.  Mag. 
208;  30  N.  W.  Rep.  742;  State  v. 
Graham,  61  Iowa,  608  (1883)  ;  s.c.  16 
N.  W.  Rep.  743;  State  v.  Riddle,  20 
Kan.  711  (1878)  ;  Payne  v.  Common- 
wealth, 1  Met.  (Kv.)  370  (1858); 
State  r.  Jackson,  37  La.  An.  896 
(1885);  State  !•.  Birdwell,  36  La.  An. 
859  (1884)  ;  State  v.  Janvier,  37  La. 
An.  645  (1885)  ;  State  v.  Labuzan,  37 


La.  An.  489  (1885);  State  v.  Ford, 
37  La.  An.  443  (1885)  ;  State  v.  Wat- 
son, 36  La.  An.  148  (1884);  State  v. 
Claude,  35  La.  An.  71  (1883)  ;  State 
V.  Jackson,  33  La.  An.  1087  (1881)  ; 
State  V.  Vance,  32  La.  An.  1 177  (1880)  ; 
State  I'.  Jackson,  12  La.  An.  679 
(1856)  ;  Costley  v.  State,  48  Md.  175 
(1877)  ;  Commonwealth  v.  Barnacle, 
134  Mass.  215(1883)  ;  s.c.  45  Am.  Rep. 
319;  Commonwealth  r.  Mead,  78  Mass. 
(12  Gray)  167  (1858);  s.c.  71  Am. 
Dec.  741 ;  People  v.  Garbutt,  17  Mich. 
9  (1868) ;  s.c.  97  Am.  Dec.  162  ;  Law 
Insan.  463;  State  r.  Dumpliey,4  Minn. 
438  (1800);  Spivey  v.  State',  58  Miss. 
858  (1881)  ;  Chase  v.  State,  46  Miss. 
683  (1872)  ;  Newcomb  v.  State,  37 
Miss.  383  (1859)  ;  State  v.  Downs,  91 
Mo.  19  (1886)  ;  s.c.  3  S.  W.  Rep.  219  ; 
State  V.  Rider,  90  Mo.  54  (1886) ;  s.c. 
1  S.  W.  Rep.  825;  State  v.  Hayden, 
83  Mo.  198  (1884)  ;  State  v.  VAkim, 
63  Mo.  159  (1876);  State  v.  Brown, 
63  Mo.  439  (1876)  ;  State  r.  Harris, 
59  Mo.  550  (1875)  ;  State  v.  Bryant,  55 
Mo.  75  (1874)  ;  State  v.  Keene,  50  Mo. 
357  (1872)  ;  State  v.  Pearce,  15  Nev. 
188  (1880)  ;  Peo/>le  v.  Druse,  103  N.  Y. 
655  (1886) ;  s.c.  9  Cr.  L.  Mag.  88 ;  8 
N.  E.  Rep.  733;  Sindram  v.  People, 
88  N.  Y.  196  (1882)  ;  s.c.  Law  Insan. 
802;  Abbott  i-.  People,  86  N.  Y.  460 
(1881)  ;  Thomas  v.  People,  67  N.  Y. 
218  (1876)  ;  Nichols  v.  People,  23  Hun 
(N.  Y.)  165  (1880)  ;  McKenna  v. 
People.  18  Hun  (N.  Y.)  580  (1879); 
State  V.  Matthews,  78  N.  C.  523  (1878)  ; 
State  I'.  Tilly,  3  Ired.  (N.  C.)  L.  424 
(1843)  ;  State  v.  Floyd,  6  Jones  (N.  C) 


458  HOMICIDE.  [chap.  XXII. 

murder  in  tlie  first  degree,  under  tlie  Wisconsin  statute, 
wliere  it  appeared  that  the  fatal  blow  was  inflicted  with  a 
pocket-knife,  and  that  the  deceased  made  the  first  assault,  it 
was  held  error  to  reject  evidence  offered  by  the  defendant  to 
show  that  the  deceased  was  a  man  of  great  physical  strength, 
and  was  "  a  desperate,  fighting,  ruffianly  man,"  and  that  the 
defendant  had  knowledge  of  these  facts.i  Where  it  was  in 
evidence  that  the  defendant  H.  charged  the  deceased  with 
perjury,  adding :  "  I  can  prove  it.  Come  up  here,  M."  ;  where- 
upon the  defendant  M.  stepped  up,  when  the  deceased  struck 
him,  knocked  him  on  his  knees,  and  stamped  on  him;  M.  then 
rose  up,  and  the  deceased  immediately  thereafter  staggered 
back  mortally  wounded,  one  witness  stating  tliat  both  JNI.  and 
the  deceased  had  knives  in  their  hands  ;  it  was  further  in 
evidence  that  M.  was  small,  crippled,  and  one-eyed,  and 
deceased  was  a  strong  man.  The  court  held  that  evidence  of 
the  character  of  the  deceased  for  violence  was  admissible.^ 

But  such  evidence  is  admissible  only  where  the  proof 
leaves  open  the  question  of  self-defence ;  and  then  it  must  be 
proved,  not  by  opinions  of  witnesses,  but  by  evidence  of 
reputation.3      Nqj   can    such   reputation  be  proved  by   evi- 

L.  .392  (1859)  ;  State  v.  Hogue,  6  Jones  pare  State  v.  Field,  14  Me.  244  (1837)  ; 

(N.  C.)  L.  381  (1859) ;  Marts  i-.  State,  s.c.  31  Am.  Dec.   52;   Conimonwealtli 

26  Ohio  St.  162  (1875)  ;  Blackburn  v.  v.  Hilliard,  68  Mass.    (2    Gray)    294 

State,  23  Ohio  St.  146  (1872);  s.c.  2  (1854);    Commonwealth   v.  Ferrigan, 

Gr.  Cr.  Rep.  534  ;  Tiffany  v.  Common-  44  Pa.  St.  386  (1863). 

wealth,  121  Pa.  St.  165  (1888)  ;   s.c.  i  State  v.  Nett,  50  Wis.  524  (1880); 

15  Atl.  Rep.  462;  Alexander  r.  Com-  s.c.  2  Cr.  L.  Mag.  78;  7  N.   W.  Rep. 

monvvealth,  105  Pa.  St.  1  (1884)  ;  s.c.  344. 

5  Cr.   L.  Mag.   829;    State   v.  Smith,  It  is  said    in    Blackburn  v.  State, 

12  Rich.  (S.  C.)  L.  430  (1860)  ;  Rippy  23  Ohio  St.  146  (1872)  ;  s.c.  2  Gr.  Cr. 

V.  State,  2  Head  (Tenn.)  217  (1858);  Rep.  534,  that  the  defendant  for  the 

West    V.    State,   18    Tex.   App.    640  purpose  of  showing  that  the  deceased 

(1885)  ;  Moore  v.  State,  15  Tex.  App'.  came   to  her  death  by   suicide,  may 

1   (1884);    Williams  v.  State,  14  Tex.  show  that    six   years    previously    the 

App.  102  (1883)  ;    s.c.   46    Am.  Rep.  deceased  was  of  a  melancholy  dispo- 

237;  Creswell  v.  State,  14  Tex.  App.  sition  and  threatened  to  commit  sui- 

1    (1884)  ;    Brunei   r.  State,   12    Tex.  cide.     The    remoteness  of  the  period 

App.    521    (1883)  ;   Grisson    v.   State,  goes  merely  to  the  weight,  and  not  to 

8  Tex.  App.  386  (1880)  ;  Lewallen  r.  the  competency  of  the  evidence. 

State,  6  Tex.  App.  475  (1879)  ;  Plas-  2  state  v.  Matthews,  78  N.  C.  523 

ters  V.  State,  1  Tex.  App.  673  (1877) ;  (1878). 

Harrison  v.  Commonwealth,  79  Va.  379  ^  Harrison  v.  Commonwealth,  79  Va. 

(1884);  s.c.  52  Am.  Rep.  634;  State  374  (1884)  ;   s.c.  52    Am.    Rep.   634. 

r.  Nett,  50  Wis.  524  (1880)  ;  s.c.  2  Cr.  See    Dupree    v.    State,   33    Ala.    380 

L.  Mag.  78;  7  N.  W.  Rep.  344,     Com-  (1859)  ;  People  v.  Moan,  65  Cal.  532 


I 


SEC.  421.] 


EVIDENCE COMPETENCE. 


459 


deuce  of  specific  acts  of  violence  or  turbulence,  or  of  isolated 
facts,  which  are  not  part  of  the  res  gestce}  The  mere  fact 
that  the  deceased  severely  beat  the  prisoner  six  weeks  before 
the  killing,  is  inadmissible,^  for  the  bad  character  of  the 
deceased  cannot  be  shown  by  evidence  of  particular  facts, 
showing  misconduct,  and  the  like,  as  that  he  was  an  escaped 
convict,^  or  that  he  was  in  the  habit  of  using  liquor  to 
excess.*  And  evidence  of  threats,  or  of  the  dangerous 
character  of  the  deceased,  is  not  admissible  without  proof  of 
an  overt  act  of  attack  on  the  accused,  and  that  the  accused 
was  in  imminent  danger  therefrom.^  In  Commonwealth  v. 
Mead^  it  is  said  that  in  a  trial  for  manslaughter,  evidence 
that  the  deceased  was  a  man  of  great  muscular  strength,  and 
practised  in  seizing  persons  by  the  throat  in  a  peculiar  way, 
which  would  at  once  render  them  helpless,  and  shortly  take 
away  life,  is  inadmissible  for  the  defendant.  And  the  charac- 
ter of  the  deceased  for  violence,  a  quarrelsome  disposition, 


(1884)  ;    May  v.  People,  8  Colo.  210 

(1885)  ;  s.c.  6  Cr.  L.  Mag.  692 ,  6 
Pac.  Rep.  816  ;  Drake  r.  State,  75  Ga. 
413  (1885)  ;  Patterson  v.  State,  66 
Ind.  185  (1879) ;  State  v.  Riddle,  20 
Kan.  711  (1878) ;  State  v.  Jackson, 
37  La.  An.  896  (1885)  ;  State  v.  Jan- 
vier, 37  La.  An.  645  (1885) ;  State  v. 
Labuzan,  37  La.  An.  489  (1885); 
State  V.  Ford,  37  La.  An.  443  (1885)  ; 
State  f.  Watson,  36  La.  An.  148  (1884); 
Commonwealth  v.  Mead,  78  Mass.  (12 
Gray)  167  (1858)  ;  s.c.  71  Am.  Dec. 
741  ;  State  v.  Brown,  63  Mo.  439 
(1876);  State  v.  Elkins,  63  Mo.  159 
(1876) ;  Abbott  v.  People,  86  N.  Y. 
460  (1881)  ;  Tliomas  v.  People,  67 
N.  Y.  218  (1876)  ;  Marts  v.  Stnte,  26 
Ohio  St.  162  (1875)  ;  West  v.  State, 
18  Tex.  App.  640  (1885)  ;  Plasters  v. 
State,  1  Te.v.  App.  673  (1877). 

On  the  trial  of  P.  for  the  mnrder 
of  W.  by  the  discharge  of  a  pistol 
while  being  wrenched  from  W.'s  hands 
by  P.  and  others,  it  was  held  that  P. 
could  not  properly  be  allowed,  for 
the  purpose  of  showing  that  certain 
wounds  upon  W.'s  person,  not  contrib- 
uting to  his  death,  had  been  received 
prior  to  the  assault,  to  prove  that  W. 


had  been  intoxicated,  violent,  and 
quarrelsome  during  the  day  on  which 
he  was  killed.  Patterson  v.  State,  66 
Ind.  185  (1879). 

1  Dupree  v.  State,  33  Ala.  380 
(1859)  ;  Franklin  c.  State,  29  Ala.  14 
(1856);  Campbell  v.  State,  38  Ark. 
498  (1882);  Newcomb  v.  State,  37 
Miss.  383  (1859) ;  Peoi>le  v.  Druse,  103 
N.  Y.  655  (1886)  ;  s.c.  9  Cr.  L.  Mag. 
88;  5  N.  Y.  Cr.  Rep.  10;  3  N.  Y.  St. 
Rep.  617;  8  N.  E.  Rep.  733;  Nichols 
V.  People,  23  Hun  (N.  Y.)  165  (1880)  ; 
McKenna  i-.  People,  18  Hun  (N.  Y.) 
580  (1879);  Alexander  v.  Common- 
wealth, 105  Pa.  St.  1  (1884);  s.c.  5 
Cr.  L.  Mag.  829. 

2  Xewcomb  v.  State,  37  Miss.  383 
(1859). 

State,    33 


Ala.    380 


V.    Moan,    65    Cal.    532 


•^  Dupree 
(1859). 

■*  People 
(1884). 

5  State  V.  Jackson,  37  La.  An.  896 
(1885)  ;  State  v.  Janvier,  37  La.  An. 
645  (1885)  ;  State  v.  Labuzan.  37  La. 
An.  489  (1885)  ;  West  v.  State,  18  Tex. 
App.  640  (1885).  * 

G  78  Mass.  (12  Gray)  167  (1858)  ; 
s.c.  71  Am.  Dec.  741. 


460  HOMICIDE.  [chap.   XXII. 

&c.,  many  years  before  in  a  foreign  country,  is  immaterial, 
and  evidence  thereof  is  properly  rejected.^ 

In  a  trial  for  murder  it  is  incompetent  for  the  accused  to 
prove  that  the  general  character  of  the  deceased  for  honesty 
was  bad.  Such  evidence  could  neither  explain  the  actions  of 
the  deceased  at  the  time  he  was  killed  nor  show  that  the 
accused  committed  the  homicide  in  self-defence,  or  under 
circumstances  justifying  it.^  Thus  in  the  case  of  People  v. 
Druse,^  at  the  trial  of  an  indictment  for  murder,  the  only 
defence  being  justification,  evidence  was  offered  by  the 
defendant  that  the  deceased  treated  his  domestic  animals 
with  cruelty ;  and  that  he  robbed  his  father,  when  in  his 
coffin,  of  his  grave  clothes  and  wore  them  at  his  funeral. 
The  court  held  that  this  evidence  was  properly  excluded 
under  the  rule  that,  after  evidence  has  been  given  by  a 
defendant,  tending  to  shovir  that  the  homicide  was  committed 
in  self-defence,  he  may  follow  it  by  proof  of  the  general  repu- 
tation of  the  deceased  for  quarrelsomeness  and  violence,  but 
evidence  of  specific  acts  is  inadmissible. 

Uncorroborated  testimony  of  a  single  witness  to  the  fact 
that  the  deceased  began  the  conflict  in  which  he  was  killed, 
contradicted  by  other  witnesses,  and  disbelieved  by  the  judge 
a  quo,  does  not  establish  such  foundation  as  to  render  evi- 
dence of  the  deceased's  bad  and  dangerous  character  ad- 
missible.* 

Sec.  422.    Same  —  Where   defendant    the    agrgressor. — 

Where  the  defendant  is  the  aggressor,  he  will  not  be  permitted 
to  show  the  character,  habits,  and  disposition  of  the  deceased, 
because  these  will  not  excuse  his  act  or  palliate  his  crime.^ 
Thus  where  the  evidence  showed  that  the  accused  pursued  the 
deceased  with  a  drawn  knife,  with  which  he  gave  the  mortal 
stroke,  it  was  held  that  evidence  of  the  dangerous  character 


1  May  y.  People,  8  Colo.  210  (1885);  *  State   v.    Ford,   37   La.  An.   443 
s.c.  6  Cr.  L.  Mag.  692;  0  Pac.  Kep.  (1885). 

816.  5  See  Drake  v.  State,  75  Ga.  413 

2  Plasters  v.  State,  1  Tex.  App.  673  (1885)  ;  State  v.  Watson,  36  La.  An. 
(1877).  148    (1884)  ;     Abbott    v.    People,   86 

3  103  N.  Y.«055  (1886)  ;  s.c.  9  Cr.  N.  Y.  460  (1881)  ;  Thomas  v.  People, 
L.  Mag.  88;  5  N.  Y.  Cr.  Rep.  10;   3  67  N.  Y.  218  (1876). 

N.  Y.  St.  Rep.  617  ;  8  N.  E.  Rep.  733. 


SEC.  423.] 


EVIDENCE  —  COMPETENCE. 


461 


of  the  deceased  was  properly  excluded.^  In  Abbott  v.  People,^ 
which  was  the  trial  of  an  indictment  for  murder,  the  deceased 
having  been  struck  and  killed  with  an  iron  wrench,  evidence 
of  the  reputation  of  the  deceased  as  being  quarrelsome  was 
held  to  have  been  properly  excluded,  where  no  assault  or 
threat  on  the  part  of  the  deceased  had  been  made,  and  where 
there  could  be  no  pretence  that  the  blow  was  struck  in  self- 
defence.  And  it  is  said  in  Drake  v.  State  ^  that  where  the 
evidence  tends  to  show  that  the  defendant  killed  his  wife 
with  an  axe  and  cut  her  throat,  evidence  that  she  had  a  vio- 
lent temper  is  properly  rejected. 

Sec.  423.  Tlireats  of  defendant.  —  On  the  trial  of  an 
indictment  for  murder,  proof  of  previous  threats  by  defendant 
against  the  deceased  is  competent  as  showing  malice,  and  if 
made  long  enough  before  the  homicide,  as  evidence  of  pre- 
meditation  and  deliberation.*     Thus  it  has  been  said  that 


1  State  V.  Watson,  3G  La.  An.  148 
(1884). 

2  86N.  Y.  460  (1881). 

3  75  Ga.  413  (1885). 

*  Harrison  v.  State,  79  Ala.  29 
(1885);  Jordon  v.  State,  79  Ala.  9 
(1885)  ;  Anderson  v.  State,  79  Ala.  5 
(1885);  Jones  v.  State,  76  Ala.  8 
(1884);  Redd  v.  State,  68  Ala.  494 
(1881)  ;  Marler  v.  State,  67  Ala.  55 
.(1880)  ;  s.c.  42  Am.  Rep.  95  ;  Johnson 
V.  State,  17  Ala.  618  (1850)  ;  Pitman 
V.  State,  22  Ark.  354  (1860)  ;  Dunn  v. 
State,  2  Ark.  229  (1839)  ;  s.c.  35  Am. 
Dec.  54;.  State  v.  Hoi/t,47  Conn.  518 
(1880)  ;  s.c.  .36  Am.  Rep.  89;  State  v. 
Hoyt,  46  Conn.  330  (1878)  ;  State  v.  Al- 
ford, 31  Conn. 40(1862);  State  y.  Green, 
1  Houst.  Cr.  Cas.  (Del.)  217  (1866)  ; 
Dixon  V.  State,  13  Fla.  6.36  (1871)  ; 
Everett  v.  State,  62  Ga.  65  (1878)  ; 
Westbrook  v.  People,  126  111.  81 
(1888)  ;  s.c.  18  N.  E.  Rep.  .304  ;  School- 
craft V.  People,  117  111.  217  (1886); 
s.c.  7  N.  E.  Rep.  649;  Goodwin  v. 
State,  96  Ind.  550  (1884)  ;  State  v. 
McCahill,  72  Iowa,  111  (1887);  s.c.  9 
Cr.  L.  Mag.  37 ;  30  N.  W.  Rep.  553 ; 
33  N.  W.  Rep.  599 ;  Brewer  v.  Com- 
monwealth (Ky.),  8  S.  W.  Rep. 
339  (1888)  ;  Short  v.  Commonwealth 


(Ky.),  4  S.  W.  Rep.  810  (1887)  ;  Smith 
V.  Commonwealth  (Ky.),  4  S.  W.  Rep. 
798  (1887)  ;  Hart  v.  Commonwealth, 
85  Ky.  77  (1887)  ;  s.c.  2  S.  W.  Rep. 
673;  Nichols  v.  Commonwealth,  11 
Bush  (Ky.)  575(1875);  State  r.  Bird- 
well,  36  La.  An.  859  (1884)  ;  Riggs  i-. 
State,  30  Miss.  635  (1856);  State  v. 
Partlow,  90  Mo.  608  (1886)  ;  s.c.  59 
Am.  Rep.  31 ;  State  v.  Grant,  79  Mo. 
113  (1883);  s.c.  49  Am.  Rep.  218; 
State  V.  Adams,  76  Mo.  355  (1882)  ; 
State  V.  Nugent,  71  Mo.  1-36  (1879)  ; 
s.c.  8  Mo.  App.  563 ;  State  v.  Guy,  69 
Mo.  430  (1879)  ;  State  v.  Hymer,  15 
Ncv.  49  (1880)  ;  State  v.  Wentworth, 
37  N.  H.  196  (1858) ;  LaBeau  v.  Peo- 
ple, 34  N.  Y.  223  (1866)  ;  Friery  v. 
People,  2  Abb.  App.  Dec.  (N.  Y.)  215 
(1866)  ;  Jefferds  v.  People,  5  Park. 
Cr.  Cas.  (N.  Y.)  518,  522  (1861); 
State  V.  Rash,  12  Ired.  (N.  C.)  L.  382 
(1851);  s.c.  55  Am.  Dec.  420;  State 
V.  Hildreth,  9  Ired.  (N.  C.)  L.  429 
(1849);  s.c.  51  Am.  Dec.  364;  State 
V.  Shepherd,  8  Ired.  (N.  C.)  L.  195 
(1847).  Compare  Minims  r.  State,  16 
Ohio  St.  221  (1865)  ;  Stewart  v.  State, 
1  Ohio  St.  m  (1852)  ;  Hopkins  v.  Com- 
monwealth, 50  Pa.  St.  9  (1865);  s.c. 
88  Am.  Dec.  518 ;   State  v.  Belton,  24 


462 


HOMICIDE. 


[chap.  XXII. 


evidence  is  admissible  on  the  part  of  the  state  that  the 
defendant,  after  an  altercation  with  the  deceased,  said  :  "  111 
kill  him  before  day,  God  damn  him,"  although  the  defendant 
had  o-one  away  from  the  deceased.^  And  it  is  said  in  the 
case  of  State  v.  McCahill  ^  that  in  a  trial  for  murder  where 
it  is  shown  that  a  mob  of  miners  on  a  strike,  in  carrying  out 
a  conspiracy  to  drive  away  new  men  who  had  been  brought 
there  to  work  the  mines,  surrounded  the  house  in  which  the 
deceased  was,  and  fired  shots  into  the  house,  and  inside  of  it, 
killing  the  deceased,  evidence  of  threats  to  kill  a  superin- 
tendent of  the  mines  who  was  in  the  house,  followed  by 
immediate  firing,  made  during  the  attack  but  subsequently 
to  the  killing  of  the  deceased,  is  admissible,  as  showing  the 
desperate  character  of  the  mob,  and  that  murder  was  part  of 
their  programme. 

The  rule  has  been  declared  by  a  number  of  well-considered 
cases  that  the  threats  may  be  admissible,  although  they  were 
not  directed  toward  any  particular  person ;  ^  such  as  threats 


S.  C.  185  (1885)  ;  s.c.  58  Am.  Rep.  245 ; 
Heath  v.  Commonwealth,  1  Rob.  (Va.) 
735  (1842);  White  v.  Territory,  3 
Wash.  Tr.  397  (1888)  ;  s.c.  19  Pac. 
Rep.  37;  Benedict  v.  State,  14  Wis. 
423  (1861)  ;  United  States  v.  Never- 
son,  1  Mackey  (D.  C.)  152  (1880). 
See  Alston  v.  State,  63  Ala,  178 
(1879);  Dixon  v.  State,  13  Fla.  636 
(1871);  Cluck  v.  State,  40  Ind.  263 
(1872) ;  State  v.  Sterrett,  71  Iowa,  386 
(1887)  ;  Johnson  v.  Commonwealth,  9 
Bush  (Ivy.)  224  (1872);  People  r. 
Curtis,  52  Mich.  616  (1884)  ;  State  v. 
Downs,  91  Mo.  19  (1886) ;  s.c.  3  S.  W. 
Rep.  219;  Carr  v.  State,  23  Neb.  749 
(1888) ;  s.c.  37  N.  W.  Rep.  630 ;  State 
V.  Barfield,  7  Ired.  (N.  C)  L.  299 
(1847)  ;  Moore  i-.  State,  2  Ohio  St. 
500  (1853)  ;  Abernethy  v.  Common- 
wealth, 101  Pa.  St.  322  (1882)  ;  Max- 
well )-•.  State,  3  Heisk.  (Tenn.)  420 
(1872)  ;  Lander  v.  State,  12  Tex.  462 
(1854)  ;  Phillips  v.  State,  22  Tex. 
App.  139  (1887);  s.c.  2  S.  W.  Rep.  601. 

1  State  V.  Guy,  69  Mo.  430  (1879). 

2  72  Iowa,  111  (1887)  ;  s.c.  9  Cr.  L. 
Mag.  37  ;  30  N.  W.  Rep.  553. 

3  Harrison    v.    Slate,    79    Ala.    29 


(1885)  ;  Jordon  i-.  State,  79  Ala.  9 
(1885)  ;  Anderson  v.  State,  79  Ala. 
5  (1885).  See  State  v.  Hoyt,  47  Conn. 
518  (1880);  s.c.  36  Am.  Rep.  89; 
Dixon  V.  State,  13  Fla.  636  (1871); 
State  V.  Grant,  79  Mo.  113  (1883)  ;  s.c. 
49  Am.  Rep.  218;  State  v.  Hymer,  15 
Nev.  49  (1880)  ;  State  v.  Belton,  24 
S.  C.  185  (1885)  ;  s.c.  58  Am.  Rep.  245^ 
Benedict  v.  State,  14  Wis.  423  (1861). 
1  A  remark  made  by  the  defend- 
ant a  few  days  before  the  homicide, 
after  speaking  of  his  father,  that  he 
did  not  know  but  he  should  kill  some 
one  witliin  a  week,  was  held  to  be 
admissible  against  him  as  a  threat, 
and  as  showing  a  revengeful  and 
murderous  spirit.  State  v.  Hoyt,  47 
Conn.  518  (1880)  ;  s.c.  36  Am. 
Rep.  89.  See  Hopkins  v.  Common- 
wealth, 50  Pa.  St.  9  (1865);  s.c. 
88  Am.  Dec.  518;  Benedict  v.  State, 
14  Wis.  423  (1861).  In  Abernethy 
V.  Commonwealth,  101  Pa.  St.  322 
1882),  the  defendant  had  a  quar- 
rel with  K.,  which  much  excited  the 
defendant,  who  made  threats  to  kill 
K.  or  somebody,  and  borrowed  a  pis- 
tol.    Later  in  the  day,  the  defendant 


SEC.  423.]  EVIDENCE COMPETENCE.  463 

against  " some  one," ^ *  "a  policeman," ^  "  the  Deans,"  ^  or  "  two 
or  three  men."  *  But  where  the  threats  specify  the  person 
against  whom  they  are  made,  they  are  not  admissible  against 
the  defendant  npon  trial  for  killing  another  person ;  ^  and 
they  need  not  have  been  to  commit  any  specific  act  or  injury 
if  they  tend  to  show  a  malicious  condition  of  the  defendant's 
mind.  Thus  in  >Schoolcraft  v.  People  ^  testimony  that  the 
defendant  said,  in  speaking  of  a  difficulty  that  he  had  had 
with  the  deceased,  that  he  was  "part  Indian;  bad  medicine," 
and  that  something  serious  would  grow  out  of  this  trouble, 
was  held  admissible,  as  tending  to  show  a  threat.  And  where 
a  threat  is  specific,  the  fact  that  the  injury  was  threatened  to  be 
done  by  other  means  than  the  evidence  shows  to  have  been  used 
in  the  commission  of  the  homicide,  will  not  render  it  incom- 
petent. Thus  in  La  Beau  v.  People "  it  is  said  that  on  the  trial 
of  a  prisoner  for  the  crime  of  murder  by  poisoning,  it  is  com- 
petent to  prove  that  he  had  threatened  injury  to  the  deceased 
with  other  instruments,  —  for  example,  a  slung-shot,  —  as  tend- 
ing to  prove  the  animus  of  the  prisoner  towards  the  deceased. 
Conditional  threats  made  hy  the  prisoner  are  admissible  in 
evidence,^  and  their  competency  will  not  be  affected  by  their 
nearness  or  remoteness.^ 

had  a  quarrel  vvithB.,wliom  ho  shot  and  (1880),    the    prosecution    introduced 

killed.  The  court  held  that  evidence  of  evidence    showing   that    three    hours 

his  threats  to  kill  K.  or  somebody  was  before   the   liomicide,  the    defendant, 

inadmissible  upon  his  trial  for  killing  while  in  a  bar-room,  exclaimed  :  "  This 

B.,  with  wliom  he  had  had  no  quarrel  is   the  first  time  I   have  been  drunk 

at  the  time  he  uttered  the  threats.  since    I    have    lieen    in    town.     I    got 

2  On  a  trial  for  the  murder  of  a  police-  drunk  just  to  kill  two  or  three  men 
man,  proof  is  admissible  of  threats  of  in  this  town  to-night,  and  I'll  do  it, 
violence  made  by  the  accused  sliortly  too."  The  court  held  the  evidence  ad- 
before  the  homicide  against  "police-  missible,  as  tending  to  show  that  the 
men,"  thougli  not  particularly  against  defendant  had  tlie  deceased  in  his  mind 
the  deceased.  Dixon  r.  State,  13  Fla.  at  the  time  of  uttering  the  tlireats. 
636  (1871)  ;  State  v.  Grant,  79  Mo.  113  »  Carr  v.  State,  23  Neb.  749  (1888)  ; 
(1883)  ;  s.c.  49  Am.  Picp.  218.  s.c.  37  N.  W.  Kep.  630. 

3  In  State   v.  Belton,  24  S.  C.   185  ^  117  111.  271  (188G)  ;  s.c.  7  N.  E. 
(1885)  ;  s.c.  58  Am.  Rep.  245,  the  de-  Eep.  649. 

fendant  had  threatened  "  the  Deans."  ^  34  N.  Y.  223  (1866). 

On  his  trial  for  the  murder  of  one  of  ^  State     v.     Adams,    76    Mo.    .355 

the  family,  the  court  held  that  evi-  (1882);    s.c.   4    Am.    Cr.    Kep.    392; 

dence  of  this  threat  was    admissible,  State  v.  Johnson,  76  Mo.  12  (1882). 
although  defendant's  quarrel  was  with  ^  State  z-.  Adams,  76  Mo.  355  (1882) ; 

other  members  of  the  family.  s.c.  4  Am.  Cr.  Rep.  392.     See  State 

*  In   State   v.   Hymer,   15  Nev.  49  t-.  Hoyt,  46  Conn.  330  (1878)  ;  Keener 
*  Foot-uote  1  begins  on  preceding  page. 


464  HOMICIDE.  [chap.  XXII. 

It  is  immaterial  to  whom  the  threats  were  made,  or  whether 
they  were  made  to  any  particular  person.  Threats  made  by 
defendant  while  talking  to  himself  may  be  admissible,  and 
the  threats  may  be  proved  by  any  person  who  heard  them 
uttered.^  It  is  immaterial  how  long  before  the  homicide  the 
threats  were  made,  as  the  remoteness  of  their  utterance  goes 
to  their  weight  and  not  to  their  competency.^  Thus  in 
Smith  V.  Commonwealth  -  a  witness  was  permitted  to  testify 
that  the  defendant,  while  drunk  and  alone,  talked  to  himself 
and  threatened  to  kill  the  deceased,  and  the  court  held  this 
evidence  properly  admissible,  as  tending  to  show  the  state  of 
defendant's  feeling  toward  the  deceased.  In  the  case  of 
Short  V.  Commonwealth  ^  a  witness  was  permitted,  against  the 
defendant's  objection,  to  testify  that  while  the  witness  was  in 
the  front  room,  and  the  accused  was  with  the  deceased  and 
several  persons,  in  the  back  room,  immediately  before  the 
affray,  he  heard  a  conversation  containing  insults  and  threats, 
and  that  soon  thereafter  th«  deceased  and  the  accused,  with 
other  persons,  passed  through  the  room  where  the  Avitness 
was,  "  out  into  the  crime.''  The  court  held  that  said  testi- 
mony was  admissible,  though  the  witness  could  not,  while  in 
the  front  room,  see  any  of  the  parties,  or  recognize  the  voices  ; 
that  the  accused  was  sufficiently  connected  with  the  conver- 
sation by  the  portion  of  the  testimony  in  italics. 

Sec.  424.  Same  —  Time  of  threats.  —  There  is  no  pre- 
scribed limit  to  the  time  before  the  homicide  in  which  the 
threats  must  have  been  made  in  order  to  render  them  admis- 
sible in  evidence.*  Thus  it  has  been  said  that  where  the 
threats  by  the  accused  against  the  life  of  the  deceased  were 
made  thirty  days  before  the  homicide,  it  affects  their  Aveight, 
and  not  their  admissibility.'^  In  Everett  v.  State,^  on  the  trial 
of  E.  for  the  murder  of  F.,  who  had  been  his  paramour,  there 

V.  State,  18  Ga.  194  (ISoa)  ;  State  v.  ^  4  s.  W.  Rep.  (Ky.)  708  (1887). 

Ford,  8  Strobh.  (S.  C.)  L.  517  (iioH')  •''  4  S.  W.  Hep.  (Ky.)  810  (1887). 

(1839).  *  See  State  r.  Hoyt,  40  Conn.  330 

1  See  Eedd  v.   State,  08  Ala.   404  (1878);    Everett   v.  Slate,  02  Ga.  05 

(1881);  State  ;-.  Hoyt,  40  Conn.  330  (1878);   Jefferds    c.   People,   5   Park. 

(1878)  ;   Everett  v.  State,  62    Ga.  05  Cr.  Cas.  (N.  Y.)  522  (1801). 
(1878);    Goodwin    v.    State,   90   Ind.  &  Goodwin    r.    State,   90    Ind.    550 

550  (1884)  ;  Jefferds  v.  People,  5  Park.  (1884). 
Cr.  Cas.  (N.  Y.)  522  (1801).  e  62  Ga.  05  (1878). 


SEC.  425.]  EVIDENCE  —  COMPETENCE.  465 

was  evidence  that,  on  the  evening  of  her  death,  she  had  been 
escorted  by  another  muhitto,  who  was  becoming  attentive  to 
her.  A  threat  by  E.  that  he  wouhl  sooner  kill  F.  than  see 
her  married  to  any  other  man  than  himself,  was  held  admis- 
sible in  evidence,  although  made  more  than  a  year  before  the 
killing.  In  the  case  of  Jefferds  v.  People,^  the  court  admitted 
evidence  of  threats  made  by  the  prisoner  two  years  prior  to  the 
homicide,  and  this  ruling  was  sustained  on  appeal.  The  court 
saying  that  long-continued  animosity  and  ill-will  are  better 
evidence  of  a  state  of  mind  which  would  ripen  into  deliberate 
nuirder  than  the  hasty  ebullition  of  passion.  ]\lurder  is  not 
unpremeditation,  and  the  motives  for  such  an  act  are  not  the 
less  powerful  because  they  are  the  result  of  ill-feelings  enter- 
tained for  3-ears.  And  in  State  v.  Hoyt  ^  evidence  was  intro- 
duced, showing  that  thirteen  years  before  the  homicide,  the 
accused  said  that  he  would  like  to  put  a  ball  through  the 
head  of  the  deceased,  and  that  he  had  made  like  declarations 
three  or  four  years  before  the  homicide,  and  the  appellate 
court  held  that  the  evidence  was  admissible,  and  that  the  re- 
moteness of  time  went  solely  to  the  weight  to  be  attached  to  it. 

Sec.  425.    Acts  of  defendant — ^"Before  the  homicide. — 

Evidence  of  prior  acts  of  the  defendant,  though  they  are  not 
shown  to  be  a  part  of  the  res  gestce,  is  admissible  when  such 
acts  legitimately  tend  to  establish  motive  or  intention  in 
the  defendant  to  commit  the  crime  with  which  he  is  charged ; 
and  such  evidence  is  admissible  for  that  purpose  only.^  Its 
admissibility  is  not  limited  as  to  the  time  or  place  of  the  act 
or  acts,  but  they  may  be  shown  whenever  they  will  serve  to 
cast  light  upon  the  question  whether  the  defendant  committed 
the  homicide,  or  whether  he  did  it  with  malice  or  with  pre- 
meditation and  deliljeration.  Thus  where  the  parties  were 
together  previous  to  the  homicide,  the  defendant's  whole 
conduct  from  the  time  of  the  meeting  until  the  consumma- 
tion of  the  crime  may  be  shown ;  *  proof  of  menaces  towards 
the  deceased  is  always  legitimate  evidence ;  ^  and  occurrences^, 

1  5   Park.    Cr.    Cas.    (N.  Y.)    522  *  See  People  v.  Potter,  5  Mich.  1 
(1801).                                                             (1858)  ;  s.c.  71  Am.  Dec.  663. 

2  46  Conn.  330  (1878).  ^  Anderson  v.  State,  15  Tex.  App. 

3  State    V.   Edwards,   34  La.   An.     447  (1884). 
1012  (1882). 

30 


466  HOMICIDE.  [chap.  XXII. 

not  necessarily  connected  with  the  deceased,  occurring  nearly 
at  the  same  time,  ma}^  be  proved  to  show  a  desperate,  reck- 
less, or  mischievous  state  of  mind  in  defendant.^  Previous 
maltreatment  of  the  deceased  by  the  accused  may  aid  to  raise  a 
powerful  presumption  of  malice,  especially  if  of  the  same 
nature  of  the  fatal  assault ;  ^  and  other  acts  of  violence  may 
also  be  proved  on  the  trial  of  an  indictment  for  manslaughter. 
Thus  on  the  trial  of  an  indictment  for  manslaughter,  by 
hauling  the  deceased  by  the  hair  of  the  head,  and  throwing 
her  violently  upon  a  sofa,  other  acts  of  violence  upon  the  same 
evening  may  be  shown.^ 

Proof  that  the  defendant  purchased  or  carried  deadly 
weapons  may  also  afford  a  presumption  of  malice ;  and  where 
such  proof  is  made,  it  is  immaterial  that  carrying  weapons  is  a 
general  custom  within  the  locality  where  the  homicide  was 
committed.  But  the  defendant  should  be  allowed  to  explain 
his  motive  in  carrying  such  a  weapon.* 

Where  the  defendant  sets  up  certain  facts  in  mitigation,  it  is 
admissible  to  show  previous  acts  committed  by  him,  although 
remote  and  inconsistent  with  the  existence  of  such  facts. 
Thus  in  State  v.  Bryant,'^  testimony  was  introduced  showing 
the  wild  action  and  demeanor  of  the  defendant,  and  that  it 
had  been  aggravated  by  the  belief  that  the  deceased  had  de- 
bauched the  defendant's  wife.  The  state  introduced  testi- 
mony that  prior  to  his  marriage,  he  wanted  to  rent  a  room 
in  which  he  proposed  to  keep  the  woman  he  afterwards 
married,  for  the  purpose  of  general  prostitution  for  his  pecu- 
niary benefit.  The  appellate  court  held  that  tlie  evidence 
was  properly  admitted. 

But  it  is  not  proper  to  prove  actions  not  in  any  way  con- 
nected with  the  homicide,  and  which  could  not  have  had 
any  influence  in  its  commission.'^      Thus  in  United  States  v. 

1  Kernan    r.    State,    05    Md.    253  (1883)  ;    Creswcll    v.    State,    14   Tex. 

(1885)  ;  s.c.  3  Atl.  Rep.  124.  App.  1  (1884). 

^     2  See    Williams    v.    State,   G4    Md.  ^  90  Mo.  273   (1887);  s.c.  OS.  W. 

384    (1885);    s.c.    1    Atl.    Kep.   887;  Rep.  102. 

State  V.  Rash,  12  Ired.  (N.  C.)   L.  382  '^  See  Commonwealth  v.  Campbell, 

(1851);  s.c.  55  Am.  Dee.  420;  Stone  80  Mass.   (7  Allen)    541   (18(33);  s.c. 

r.  State,  4  Humph.  (Tenn.)  27  (1843).  83   Am.   Dec.   705;    United    States   v. 

3  State  ;;.  Pike,  05  Me.  Ill   (1876).  Kinir,  34  Fed.  Rep.  302  (1888). 

*  See  State  v.  Brown,  75  Me.  450  Where  the  wife  of  O.,  the  deceased, 


SEC.  426.]  EVIDENCE  —  COMPETENCE.  467 

King,^  it  appeared  on  the  trial  of  a  private  soldier  charged 
with  murder  committed  by  him  on  a  military  reservation,  that 
the  soldiers  stationed  there  were  frequently  allowed  to  go 
out  and  come  in  without  a  pass.  It  was  also  in  evidence  that 
there  were  many  saloons  in  the  neighborhood.  The  court 
held  that  this  fact  should  not  w^ork  to  the  prejudice  of  the 
accused,  who  had  availed  himself  of  the  privilege  on  the 
night  of  the  murder. 

In  an  indictment  for  murder,  committed  during  a  riot  in 
Avhich  the  prisoner  was  engaged,  evidence  to  prove  other 
riotous  acts  by  him  at  a  different  place,  and  several  hours 
earlier,  is  not  competent  unless  it  is  first  shown  that  the 
various  acts  were  all  parts  of  one  continuous  transaction.^ 
And  in  the  trial  of  an  indictment  for  murder  by  poison,  in 
which  one  count  alleges  that  the  deceased  was  pregnant,  and 
was  induced  to  take  the  poison  by  assurance  of  the  defendant 
that  it  was  a  medical  preparation  which  would  produce  a 
miscarriage,  evidence  of  a  conversation  two  or  three  years 
before  the  time  of  the  acts  charged,  in  which  the  defendant 
applied  to  a  witness  for  information  upon  the  subject  of  pro- 
curing abortions,  is  inadmissible.'^ 

Sec.  426.  Same  —  Evidence  of  other  crimes.  —  Where 
two  persons  are  killed  at  the  same  time  and  place,  and  appar- 
ently in  the  same  transaction,  or  approximately  so,  evidence 
as  to  the  circumstances  of  the  killing  of  one  is  admissible  on 
the  trial  of  an  indictment  for  the  killing  of  the  other ,  *  and 
such  is  also  the  case  where  there  is  evidence  to  prove  that 
another  person,  killed  at  a  different  time  and  place,  was 
murdered,  as  a  part  of  the  same  deliberate  plan,  and  for  the 

was  the  only  witness  to  the  killin?,  it  IMass.  (7  Allen)   541   (1863) ;  s.c.  83 

was  held  erroneous  to  allow   her    to  Am.  Dec.  705. 

t.estify  that  a  few  minutes  before  G.,  ^  Commonwealth     v.     Hersey,    84 

the  accused,  shot  0.,  he  made  inde-  Mass.  (2  xVUen)  173  (1861). 

cent  proposals   to   her,   O.  not  being  *  Brown  i\  Commonwealth,  76  Pa. 

apprised  of  the  fact,  and  there  being  St.    319    (1874) ;     Commonwealth    v. 

nothing  to  indicate  that  it  influenced  Ferrigan,  44  Pa.  St.  386  (1863).     See 

the  acts  of  either  0.  or  G.     Gardner  People  v.  Foley,  64  Mich.  148  (1887)  ; 

V.  State,  11  Tex.  App.  265  (1882).  s.c.  0  Cr.  L.  Mag.  345 ;  31  N.  W.  Rep. 

1  34  Fed.  Rep.  302  (1888).  94;  Fernandez  v.  State,  4  Te.x.  App. 

2  Commonwealth    v.   Campbell,  89  419(1879);  Heath  r.  Commonwealth, 

1  Rob.  (Va.)  735  (1842.) 


468  HOMICIDE,  [CIIAP.  XXII. 

same  purpose,  and  with  the  same  motive,  as  was  the  person 
for  whose  murder  the  defendant  is  on  triaL^ 

In  Fernandez  v.  State,^  on  a  trial  for  the  murder  of  one  of 
two  travelling  companions  whose  bodies  were  found  about  a 
mile  apart,  evidence  of  the  condition  in  which  the  body  of 
the  other  Avas  found  was  held  to  be  admissible,  there  being 
proof  that  they  were  murdered  in  the  same  onset.  In  People 
V.  Foley ,'^  on  the  trial  of  an  indictment  for  murder  of  one  of 
two  infants,  where  it  appeared  that  the  infants  were  twins, 
and  that  both  were  put  into  one  crib  at  niglit  in  good  health, 
and  both  found  dead  in  the  morning  with  similar  marks  on 
each,  testimony  showing  the  death  of  the  other  infant,  and 
the  appearance  of  its  body,  is  properly  admitted  on  the  ques- 
tion whether  the  one  for  the  killing  of  which  the  indictment 
was  found  came  to  its  death  by  violence,  as  from  the  circum- 
stances it  is  apparent  that  they  both  came  to  their  death  in 
the  same  manner.  In  Heath  v.  Commonwealth*  evidence 
was  offered  that  the  prisoner,  on  the  same  day  that  the 
deceased  was  killed,  and  shortly  before  the  killing,  shot  a 
third  person.  Tlie  court  held  that  the  evidence  was  admis- 
sible, under  the  circumstances  of  the  case,  though  it  tended 
to  prove  a  distinct  felony  committed  by  the  prisoner  ;  such 
shooting  and  the  killing  of  the  deceased  appearing  to  be 
connected  as  parts  of  one  entire  transaction.  In  the  case  of 
Commonwealth  v.  Robinson,^  at  the  trial  of  the  defendant  for 
the  murder  of  her  brother-in-law  A.,  the  government  offered 
evidence  to  prove  that  A.'s  wife,  who  was  the  defendant's  sister, 
had  died ;  that  before  her  death,  the  defendant  had  formed  a 
scheme  to  secure  certain  insurance  on  the  life  of  A.,  which 
was  then  payable  to  his  wife ;  that,  as  a  part  of  sucli  scheme, 
the  defendant  had  determined  to  kill  her  sister,  then  to  induce 
A.  to  assign  the  insurance  to  her  (the  defendant)  and  then 
to  kill  A.  The  court  correctly  ruled  that  if  evidence  sliould 
be  offered  and  admitted  tending  to  show  that  tlie  defendant 
knew,  before  her  sister's  death,  of  tlie  existence  of  the  insur- 

^  See  Cominonvvealtli  v.  llobinson,  -4  Tex.  App.  410  (187!)). 

140  Mass.  571  (1888);  s.c.  10  Cr.  L.  »  ei  Mich.  148  (1887);   s.c.  9  Cr. 

Mag.  544;  16  N.  E.  Rep.  452.     Com-  L.  Mag.  845,  81  N.  W.  Rep.  04. 
pare  Sliaffner  v.  Comnionwealtli,   72  *  1  Rob.  (Va.)  785  (1842). 

Pa.  St.  GO  (1872);  s.c.  18  Am.  Rep.  ^  140  Mass.  571  (1888)  ;  s.c.  10  Cr. 

649;  2  Gr.  Cr.  Rep.  504.  L.  Mag.  544,  10  N.  E.  Rep.  452. 


SEC.  427.]  EVIDENCE — COMPETENCE.  4G9 

anee,  and  that  it  could  be  transferred  on  tlie  latter's  death 
to  herself,  and  made  payable  to  herself  at  A.'s  death,  then 
evidence  might  be  offered  that  the  sister  died  from  poison 
administered  by  the  defendant,  as  a  part  of  her  method  of 
carrying  out  her  intention,  in  connection  with  evidence  that 
she  poisoned  A.,  as  another  part  of  the  same  plan,  and  with 
the  same  general  intention. 

But  proof  of  other  homicides  or  crimes  having  no  connec- 
tion with  the  one  for  which  the  defendant  is  on  trial  is  ii  rel- 
evant and  inadmissible.^  The  prosecution,  however,  may 
show  other  crimes  leading  to,  or  connected  with,  the  homicide 
for  which  the  defendant  is  on  trial.^  Thus  it  has  been  said 
that  upon  the  trial  of  an  indictment  for  nuuder,  evidence  of 
an  assault  by  the  defendant  with  a  pistol,  at  a  place  not  far 
from  the  place  of  the  homicide,  and  a  very  short  time  before 
the  killing,  is  admissible  as  showing  the  general  conduct  of 
the  defendant  at  the  time  ,  and  that  what  was  said  and  done 
by  the  others  in  company  with  him  is  also  admissible.^ 

Sec.  427.  Same — Acts  after  the  homicide — Comluct 
and  appearance  indicating  mental  condition.  —  Where  the 
charge  that  the  defendant  is  the  slayer  is  disputed,  it  is  proper 
to  show,  for  the  consideration  of  the  jury,  the  conduct  and 
appearance  of  the  defendant  at  or  near  the  time  of  the  com- 
mission of  the  homicide,  as  indicating  his  mental  condition.* 
And  for  this  purpose  actions  showing  nervousness,  excitement, 
or  fear  when  first  informed  of,  or  charged  with,  the  crime,^ 


1  State  V.  Sterrett,  71  Iowa,  386  (1885);  s.c.  4  Atl.  Rep.  124;  Wash- 
(1887).  See  State  r.  Martin.  74  Mo.  fngton  v.  State,  8  Tex.  App.  377 
547   (1881).     In  a  murder  trial,  two  (1880). 

indictments    against  the   accused   for  *  See  Clougii  i'.   State,  7  Neb.  .320 

felonious    assaults,    in    no    way    con-  (1878). 

nected    with    the    homicide,  were    al-  5  State  r.  Nash,  7  Iowa,  347  (1858) ; 

lowed  to  be  read.     This  was  held  to  State  v.  Baldwin,  3(3  Kan.  1   (1886)  ; 

be  error.     State  v.  Martin,  74  Mo,  547  s.c.  9  Cr.  L.  Mag.   49 ;    12   Pa.   Rep. 

(1881).  318,   affirmmg    7     Cr.    L.    Mag.  512; 

2  See  People  v.  Rogers,  71  Cal.  5G5  Miller  v.  State,  18  Tex.  App.  2.32 
(1887);  Kernan  i-.  State,  65  Md.  253  (1885);  Noftsinger  v.  State,  7  Tex. 
(1885);    State    v.  Thomas,  98   N.   C.  App.  301  (1880). 

699  (1887) ;  s.c.  2  Am.  St.  Rep.  351 ;  The  demeanor  of  one  charged  with 
10  Cr.  L.  Mag.  443,-  4  S.  E.  Rep.  518  ;  crime,  at  or  near  the  time  of  its  corn- 
Washington  V.  State,  8  Tex.  App.  377  mission,  or  of  his  arrest  for  the  same, 
(1880).  may  always  be  shown  ;    and  the  testi- 

3  Kernan    v.    State,    65    Md.    253  mony  of    the  officer  who  subpoenaed 


470 


HOMICIDE. 


[chap.  XXII. 


or  silence,^  or  conduct  manifesting  a  lack  of  concern  at  the 
death  of  deceased,  where  deep  sorrow  is  natural  and  to  be 
expected,^  may  be  proved  against  the  defendant. 

Thus  it  has  been  held  that  evidence  is  admissible  upon  the 
trial  of  one  for  the  murder  of  his  Avife,  to  show  that  on  the 
mornino-  after  the  murder  he  manifested  no  concern  and  shed 
no  tears.3  And  it  has  been  said  that  whether  the  defendant 
manifested  evidence  of  grief  on  account  of  his  sister's  death 
was  a  proper  inquiry  for  the  state.  Such  inquiry,  however, 
must  be  confined  to  a  reasonable  time  after  the  death,  or  its 
discovery;  an  inquiry  relating  to  his  conduct  covering  a 
period  of  four  months  thereafter,  is  an  unreasonable  time  ;  but 
where  the  defendant  was  not  prejudiced  theieby,  it  will  not 
be  ground  for  reversal  of  the  conviction."* 

Sec.  428.  Same  —  Flight  or  escape. —  On  a  trial  for 
homicide,  it  is  alwaj^s  proper  to  show,  as  circumstances  tend- 
ing to  prove  the  defendant's  guilt,  that  he  fled  after  its  com- 
mission,'^ and  the  action  of  officers  in  seeking  him  to  arrest 


and  took  tlie  defendant .  before  the 
coroner's  jury,  that  "he  was  very 
nervous  and  showed  a  great  deal  of 
fear,"  is  admissible.  State  v.  Bald- 
win, 36  Kan.  1  (1886)  ;  s.c.  9  Cr.  L. 
Mag.  49;  12  Pac.  Rep.  318;  affirming 
7  Cr.  L.  Mag.  512.  And  one  who 
met,  three-quarters  of  an  hour  after  a 
murder,  the  person  indicted  for  hav- 
ing committed  it,  may  testify  that  lie 
appeared  excited.  Miller  v.  State,  18 
Tex.  A  pp.  232  (1885). 

The  rule  admitting  evidence  of  any 
peculiarity  of  conduct  of  the  accused, 
however  slight,  whore  the  evidence  is 
wholly  circumstantial,  applied,  in  a 
trial  of  a  clerk  for  murder,  to  mis- 
takes made  by  the  accused  in  selling 
goods,  and  apparent  preoccupation 
or  absence  of  mind.  Noftsinger  v. 
State,  7  Tex.  App.  301  (1880). 

1  State  V.  Reed,  02  Me.  129  (1874)  ; 
O'Mara  v.  Commonwealth,  75  Pa.  St. 
424  (1874).  The  fact  that  one  re- 
mains silent,  when  told  that  he  is  sus- 
pected of  murder,  may  properly  be 
considered  by  the  jury  as  evidence  of 
guilt.  State  v.  Reed,  62  Me.  129 
(1874). 


On  the  trial  for  murder,  a  witness 
testitied  that  he  saw  O.'s  wife  when 
she  came  where  the  body  of  the  de- 
ceased lay  ;  and  she  said  to  0.,  "  If  I 
had  been  at  home  this  would  not  have 
happened,"  and  that  O.  made  no  reply 
to  this ;  held  to  be  a  statement  to  tlie 
prisoner,  to  be  judged  by  his  conduct 
and  not  by  the  declarations  of  the 
wife  only,  and  therefore  to  be  a  part 
of  the  res  (jestce.  O'Mara  r.  Common- 
wealth, 75  Pa.  St.  424  (1874). 

-  State  V.  Baldwin,  36  Kan.  1 
(1886);  s.c.  9  Cr.  L.  Mag.  49;  12 
Pac.  Rep.  318 ;  affirming  7  Cr.  L. 
Mag.  51 ;  Greenfield  v.  People,  85 
N.  Y.  75  (1881)  ;  s.c.  .39  Am.  Rep. 
636. 

3  Greenfield  v.  People,  85  N.  Y. 
75  (1881)  ;  s.c.  39  Am.  Rep.  636. 

*  State  r.  Baldwin,  36  Kan.  1 
(1886)  ;  s.c.  9  Cr.  L.  Mag.  49  ;  12  Pac. 
Rep.  318  ;  affirming  7  Cr.  L.  Mag.  512. 

s  People  r.  Giancoli,  74  Cal.  642 
(1888)  ;  s.c.  16  Pac.  Rep.  510;  Batten 
r.  State,  80  Ind.  394  (1H81)  ;  People 
V.  Ogle,  104  N.  Y.  511  (1887)  ;  s.c.  11 
N.  E.  Rep.  53.  It  is  said  in  People  v. 
Giancoli,  74  Cal.  642  (1888)   that  iu 


SEC.  428.]         EVIDENCE COMPETENCE.  471 

may  be  sliown.^  But  the  defendant  has  the  right  to  explain 
his  flight,  or  prove  tliat  it  was  caused  by  some  other  occur- 
rence or  some  other  matter ;  ^  except  where  it  is  clearly  and 
sufficiently  proved  that  the  homicide  was  the  result  of  the 
defendant's  act.^ 

To  rebut  the  presumption  arising  from  flight,  a  prisoner 
may  show  that  his  life  was  threatened  by  relatives  of  the 
deceased.^  And  evidence  of  subsequent  public  excitement,  to 
justify  an  anticipation  of  violence  after  a  homicide,  and  tlius 
rebut  a  presumption  of  guilt  from  flight,  is  admissible,  but  the 
excitement  must  exist  before  the  flight ;  the  interval  may  be 
so  short  that  an  apprehension  cannot  arise.^  In  the  case  of 
People  V.  Ah  Choy,^  upon  a  trial  for  murder,  it  was  proved 
that  the  defendant  struck  the  blow  from  which  the  death  re- 
sulted, and  the  court  held  that  the  defendant  could  not  be 
heard  to  complain  that  his  explanations  or  his  motive  in  run- 
ning away  were  not  received  in  evidence,  because  such  evi- 
dence could  have  no  bearing  upon  the  case. 

But  it  is  incompetent  for  the  defendant  to  prove  his  con- 
duct and  statements  in  refusing  to  flee,  where  there  is  no  evi- 
dence as  to  flight,  or  as  to  defendant's  statements  in  regard 
thereto,  offered  by  the  prosecution.'' 

Proof  of  escape  or  attempts  to  escape,  after  arrest  for  the 
homicide,  is  also  competent;^  but  the  defendant  has  the  right 
to  be  heard  in  explanation,  and  the  attempted  escape  may  be 

tlie  trial  of  an  indictment  for  murder,  *  State    v.    Barham,    82    Mo.    67 

an    instruftioii    that   fliglit  is  not   an  (1884). 

inference  of  guilt,  and  tlie  timid  might  ^  State    v.   Phillips,    24    Mo.    475 

seek   safety  thereby,  while   innocent,  (1857). 

was  properly  refused.  «  1  Idaho,  317  (1870). 

1  People  V.  Ogle,  104  N.  Y.  511  '  .Jordan  v.  State,  79  Ala.  9  (1885)  ; 
(1887).  State  v.  Harris,  73  Mo.  287  (1880). 

2  State    V.    Barham,     82     Mo.    67  «  Hittneri-.  State,  19  Ind.  48  (1862) ; 
(1884)  ;  State  v.  Pliillips,  24  Mo.  475  State  y.Dufour,  31  La.  An.  804  (1879); 
(1857)  ;  Arnold  r.  State,  9  Tex.  App.  State  v.  Sanders,  76  Mo.  35  (1882). 
435  (1881).  Upon  a  trial   for   homicide  it  ap- 

3  On  A.'s  trial  for  murder  the  state  peared  that  immediately  after  the 
proved  that  A.  fled  soon  after  the  killing,  the  prisoner  was  seized  by  a 
killing.  The  court  held  that  it  was  bystander,  whom  he  attempted  to  stab 
error  thereupon  to  exclude  evidence  in  order  to  escape.  The  court  held 
offered  by  A.  that  his  flight  was  occa-  that  evidence  of  the  attempt  to  stab 
sioned  by  a  warning  that  his  life  was  was  admissible.  State  v.  Sanders,  76 
menaced  by  a  mob.     Arnold  v.  State,  Mo.  35  (1882). 

9  Tex.  App.  435  (1881). 


472 


HOMICIDE. 


[chap,  XXII. 


shown  to  have  been  from  fear  of  immediate  violence,  and  is 
not  necessarily  evidence  of  conscious  guilt.^ 

Sec.  429.  Declarations  of  defendant  —  Before  homi- 
cide. —  Declarations  and  statements  made  by  the  defendant, 
before  the  homicide,  regarding  matters  connected  therewith, 
are  not  admissible  in  his  defence,  unless  they  form  a  part  of 
the  res  gestce;^  but  where  they  tend  to  show  a  motive  for  com- 
mitting the  homicide,  or  malice  in  its  commission,  they  may 
be  proved  by  the  prosecution.^  Thus  the  declarations  of  the 
defendant  when  obtaining   the   weapon ^  or  the  poison^  are 


1  Golden  v.  State,  25  Ga.  527 
(1853). 

2  See  People  v.  Wynian,  15  Cal. 
70  (1860)  ;  Lewis  v.  iState,  72  Ga.  164 
(1883)  ;  s.c.  53  Am.  Rep.  835  ;  5  Am. 
Cr.  Kep.  381  ;  State  v.  Walker,  77 
Me.  488  (1885)  ;  s.c.  7  Cr.  L.  Mag. 
73;  5  Am.  Cr.  Hep.  465;  1  Atl.  Rep. 
.357  ;  Stale  v.  Holcomb,  86  Mo.  371 
(1885)  ;  .Johnson  r.  State,  22  Tex. 
App.  206  (1887)  ;  S'.c.  2  S.  W.  Rep. 
602. 

3  See  Redd  i:  State,  68  Ala.  494 
(1881) ;  Evans  v.  State,  62  Ala.  6 
(.1878)  ;  People  v.  Taylor,  30  Cal.  255 
(1868)  ;  Sliaw  v.  State,  60  Ga.  246 
(1878)  ;  Stafford  f.  State,  55  Ga. 
592  (1876)  ;  Thompson  v.  State,  55 
Ga.47  (1875)  ;  State  v.  Nash,  7  Iowa, 
374  (1858)  ;  State  r.  Gillick,  7  Iowa, 
287  (1858)  ;  State  v.  Crowley,  33  La. 
An.  782  (1881)  ;  Penn  v.  State,  62 
Miss.  450  (1884)  ;  Newcomb  r.  State, 
37  Miss.  383  (1859)  ;  State  v.  Stair, 
87  Mo.  268  (1885)  ;  s.c.  56  Am.  Rep. 
449;  State  v.  Ellis,  101  N.  C.  765 
(1888);  s.c.  9  Am.  St.  Rep.  49;  7 
S.  E.  Rep.  704  ;  State  v.  Howard,  82 
N.  C.  623  (1880)  ;  Minims  r.  State, 
16  Ohio  St.  221  (1865)  ;  McMcen  v. 
Commonwealth,  114  Pa.  St.  300 
(1886);  s.c.  9  Atl.  Rep.  878;  34 
Pittsb.  L.  .1.  363  ;  .Jones  r.  State,  4 
Tex.  App.  436  (1879). 

Upon  a  trial  for  murder,  evidence 
that  the  prisoner  had  saiil  tiiat  if  lie 
liad  a  cliance  he  wouhl  take  every 
cent  tliat  W.  had,  is  admissible  when 
taken  in  connection  with  proof   tliat 


the  deceased  was  an  employe  of  W.'s 
and  had  charge  of  his  money,  and 
that  this  was  known  to  the  prisoner. 
Mimms  i'.  State,  16  Ohio  St.  221 
(1865). 

On  the  trial  of  11.  for  murder  of 
A.,  who  was  proved  to  have  been 
robbed  on  tiie  night  of  the  murder, 
evidence  that  H.,  a  year  before  the 
killing,  said  to  a  person,  "  Don't  you 
reckon  if  any  one  was  to  run  in  on 
old  man  A.  he  would  get  a  lot  of 
money  ?  "  was  lield  to  be  admissible 
as  showing  H.'s  knowledge  of  the 
reputation  that  A.  kept  money  in  the 
house.  State  r.  Howard,  82  N.  C.  623 
(1880). 

*  In  State  v.  Holcomb,  86  Mo.  371 
(1885),  it  is  said  that  on  the  trial  of  one 
for  murder,  it  is  not  competent  for  liim 
to  sliow  by  liis  statement,  made  at  the 
time  he  purcliased  the  pistol  with 
which  he  killed  the  deceased,  that  liis 
purpose  in  buying  it  was  to  kill  mad 
dogs.  In  People  v.  AVyman,  15  Cal. 
70  (1860),  the  defendant  was  shown 
to  liave  borrowed  a  cliisel  on  the  day 
of  the  murder.  Tiie  court  held  that 
his  declarations  as  to  wliat  lie  intended 
to  do  with  tlie  chisel,  not  being  shown 
to  liave  any  ap]-arent  connection  with 
tlie  commission  of  the  offence  charged, 
were  not  admisisible  as  a  part  of  the 
I'es  (jester. 

0  It  is  said  in  McMeen  r.  Common- 
wealth, 114  Pa.  St.  300  (1886);  s.c. 
9  Atl.  Rep.  878 ;  34  Pittsb.  L.  J.  365, 
that  it  is  competent,  on  tlie  trial  of  a 
husband  for  the  murder  of  his  wife. 


SEC.  429.] 


EVIDE^X'E CUMrETENCE. 


473 


admissible  as  a  part  of  the  res  gestoe.  The  expressions  or 
declarations  made  at  a  time  or  shortly  before  the  homicide 
are  admissible  in  evidence  where  they  tend  to  show  the  con- 
nection of  the  defendant  with  the  crime.  Thus  the  declara- 
tions made  at  the  moment  of  the  shooting ;  ^  a  proposal  to  rob  the 
deceased; 2  declarations  between  two  defendants  while  grind- 
ing their  knives  shortly  before  the  homicide  ;3  declarations 
by  a  husband  beating  his  wife,  though  made  four  years  before 
the  homicide;*  expressions  or  declarations  showing  enmity 
towards  "white  men";^  and  statements  concerning  Masonic 


to  show  tlie  relations  between  them 
prior  and  up  to  the  time  she  took  tlie 
poison  wliioii  causeil  lier  death,  and 
to  prove  false  and  contradictory  state- 
ments made  by  him  as  to  the  purchase 
of  tlie  poison  and  his  whereabouts 
immediately  afterwards. 

1  In  State  v.  Walker,  77  Me.  488 
(1885);  s.c.  5  Am.  Cr.  Rep.  4Go;  7 
Cr.  L.  iMag.  73;  1  Atl.  Hep.  357,  the 
defendant  being  boisterously  sere- 
naded on  his  wedding  night,  rose 
from  his  bed,  and  discharged  his  pistol 
through  the  side-light  in  the  door, 
fatally  wounding  one  of  the  serenad- 
ers.  The  court  held  that  the  defend- 
ant's statements  to  his  father  at  the 
moment  of  shooting  were  admissible 
as  a  part  of  the  res  r/esht  to  show  the 
motive  of  the  shooting. 

2  A  witness  may  testify  tliat  she 
heard  one  of  the  accused  say  in  the 
presence  of  the  others  that  they  were 
going  to  rob  the  deceased.  The  cred- 
ibility only,  not  the  competency  of 
the  witness,  is  affected  by  the  fact 
that  she  was  an  associate  of  the  ac- 
cused. State  r.  Crowley,  33  La.  An. 
782  (1881).  In  Stafford  v.  State,  55 
Ga.  592  (1876),  it  is  said  tliat  upon 
a  trial  for  murder,  where  the  only  in- 
centive to  the  act  appears  to  have 
been  robbery,  it  is  competent  to  show 
that  the  defendant,  a  week  or  ten  days 
prior  to  the  homicide,  proposed  to  a 
witness  to  rob  an  old  man  and  woman 
who  lived  on  the  edge  of  a  town,  and 
who  hail  nmney  "  piled  up." 

3  See  Diiprce  v.  State,  .33  Ala.  -380 
(1859);  s.c.  73  Am.  Dec.  422;   Hop- 


kins V.  Commonwealth,  50  Pa.  St.  9 
(1805) ;  s.c.  88  Am.  l>ec.  518.  In 
State  V.  Ellis,  101  N.  C.  765  (1888); 
s.c.  9  Am.  St.  Kep.  49;  7  S.  E.  Kep. 
704,  on  an  indictment  for  murder, 
where  it  appeared  that  the  prisoner 
and  his  brother  went  to  the  house  of 
the  deceased  to  wait  until  he  came 
home  ;  that  they  had  knives,  which 
they  sharpened,  each  turning  the 
grindstone  for  the  other,  evidence  that 
while  the  prisoner  was  grinding  his 
knife  both  laughed,  and  the  brother 
said,  "Somebody  will  be  surprised  to- 
night," wiiich  remark  the  prisoner  re- 
peated, is  admissible,  the  declaration 
being  made  shortly  before  the  homi- 
cide, while  both  were  engaged  in  a 
conversation  of  which  it  was  a  part, 
and  which  declaration  the  prisoner, 
by  repeating,  made  his  own. 

*  In  Shaw  v.  State,  60  Ga.  240 
(1878),  on  trial  of  a  husband  for  the 
murder  of  his  wife,  declarations  by 
him  that  he  had  beaten  her,  and 
thought  he  had  a  right  to  do  so, 
though  made  about  four  years  before 
tlie  homicide,  were  held  to  be  admis- 
sible to  show  the  probability  of  his 
committing  the  crime,  it  having  been 
done  partly  by  beating. 

^  In  Tiiompson  v.  State,  55  Ga.  47 
(1875),  in  a  prosecution  for  murder, 
it  was  held  competent  for  the  state  to 
prove  that  the  deceased  challenged 
the  vote  of  the  defendant  on  the  morn- 
ing of  the  day  of  the  iiomicide,  and 
that  about  an  hour  previous  to  the 
giving  of  the  fatal  wound  the  witness 
heard  the  defendant  say  that  "  he  be 


47-1  HOMICIDE.  [chap.  XXII. 

lodges,^  have  all  been  admitted  as  showing  motive  or  intent. 
A  remark  of  the  defendant  to  a  witness,  on  seeing  the 
deceased  ride  up  to  a  church,  two  or  three  years  before  the 
killing,  '•  There  is  a  man  I  cannot  get  along  with,"  though  of 
little  weight  of  itself,  was  held  in  Evans  v.  State  ^  to  be  rele- 
vant and  admissible  testimony,  and  properly  admitted  when 
the  only  objection  urged  is  that  it  is  not  legal  or  lawful  evi- 
dence. .  But  a  remark  by  the  defendant,  a  few  days  before 
the  killing,  that  he  "  didn't  mind  killing  a  negro,  if  he  fooled 
with  him,  any  more  than  he  would  a  buck  rabbit,"  was  held 
to  be  irrelevant  in  Redd  v.  State.-^ 

The  writing  of  the  defendant  is  sometimes  admissible  as 
showing  guilt.  Thus  in  State  v.  Stair,*  on  the  arrest  of  a 
man  and  wife  for  murder,  there  was  found  in  his  pocket-book 
a  paper  with  the  following  words  in  his  handwriting :  "  Do 
you  think  it  safe  to  kill  them,  and  wrap  them  up  in  the 
clothes,  and  tell  them  that  they  went  off  in  a  buggy  ?  "  And 
the  court  held  that  the  writing  was  competent  evidence 
against  him,  the  proof  tending  to  show  that  he  acted  on  the 
suggestion  contained  therein ;  but  that  it  was  not  competent 
as  against  his  wife,  it  not  being  shown  by  the  state  when  it 
was  written,  or  that  she  had  any  knowledge  of  it,  and  it  not 
being  proved  to  be  a  part  of  the  res  gestce. 

But  declarations  made  prior  to  the  homicide  to  kill  some 
one  else  besides  the  deceased,  are  not  admissible.^  And 
declarations  of  the  accused  during  the  continuance  of  cruel 
treatment,  which  resulted  in  death,  are  not  admissible  when  of- 
fered by  her  to  account  for  scars  on  the  person  of  the  deceased.^ 
And  for  the  purpose  of  showing  that  the  defendant  had  no 

damned  if  lie  did  not  wish  every  white  four  montlis  prior  to  the  murder,  the 

man  in  hell."  accused,  in  soliciting  him  to  join  the 

1  In  Jones  r.  State,  4  Tex.  App.  436  lodije,  said    any   one    who   injured    a 

(1879),  on  a  trial  for  murder,  there  memher  of  it  would   pass  away  and 

was  evidence  tending  to  inculpate  the  be  no  more  heard  of. 

accused  and  several  other  meml)ers  of  ^  (52  Ala.  6  (1878). 

a  colored  Masonic  lodge  whereof  he  "  08  Ala.  492  (1881). 

was    master;    also    expert    testimony  *  87  Mo.  268  (1885);  s.c.  5G  Am. 

that  words  pencilled  upon  a  piece  of  Rep.  449. 

paper  found  pinned  to  tlie  clothes  of  &  Carr  v.  State,  23  Neb.  749  (1888)  ; 

the  deceased  were  in  the  handwriting  s.c.  o7  N.  W.  Rep.  630. 

of  the  accused.     The  court  held  that  «  Lewis  v.  State,  72  Ga.  164  (1883)  ; 

a  witness  for  the  state  might  properly  s.c.  53  Am.  Rep.  835;  5  Am.  Cr.  Rep. 

be  allowed   to  testify   that,  three  or  381. 


SEC.  430.] 


EVIDENCE COMPETENCE. 


475 


deadly  purpose  of  executing  prior  threats,  it  cannot  be  shown 
that,  the  night  before  he  went  to  the  place  of  the  homicide, 
he  told  his  mother  that  he  was  going  to  organize  an  enter- 
tainment.^ 

Sec.  430.  Same  —  Decl.iratioii  after  the  homicide  — 
Pi'oof  of  by  prosecution.  —  The  voluntary  declarations  or 
extrajudicial  admissions  of  one  charged  with  a  homicide, 
concerning  its  commission,  are  admissible  in  evidence  against 
himself ;  ^  such  as  declarations  showing  malice  ^  or  appre- 
hension,* as  well  as  voluntary  declarations  made  to  third 
parties,^  to  his  pm-suers,*^  or  to  his  keepers  after  apprehension 
and  imprisonment.'^ 


1  Johnson  v.  State,  22  Tex.  App. 
206  (1887)  ;  s.c.  2  S.  W.  Uep.  609. 

2  United  States  v.  Beebe,  2  Dak. 
292  (1880).  See  Perkins  v.  State,  60 
Ala.  7  (1877)  ;  McManus  v.  State,  36 
Ala.  285  (1860)  ;  Aikin  v.  State,  35 
Ala.  .399  (1860)  ;  Eraser  v.  State,  55 
Ga.  .325  (1875);  Goodwin  i-.  State, 
96  Ind.  550  (1884);  State  v.  Hinkle, 
6  Iowa,  .380  (1858)  ;  State  v.  Carroll, 
31  La.  An.  860  (1879) ;  State  v.  Mikie, 
81  N.  C.  552  (1879)  ;  Moore  v.  State, 
2  Ohio  St.  500  (1853);  Powers  v. 
State,  23  Tex.  App.  42  (1887);  s.c.  5 
S.  \V.  Rep.  153  ;  Steagald  v.  State,  22 
Tex.  App.  464  (1886)  ,  s.c.  9  Cr.  L. 
Majj.  515;  3  S.  W.  Rep.  771 ;  Brunei 
V.  State,  12  Tex.  App.  521  (1883)  ; 
Clampitt  V.  State,  9  Tex.  App.  27 
(1881) ;  Tooney  v.  State,  8  Tex.  App. 
452  (1880). 

Declarations  made  by  the  defend- 
ant to  or  in  the  hearing  of  a  physician 
in  professional  attendance  upon  him 
do  not,  under  the  statutes  of  Texas, 
come  within  the  class  of  privileged 
communications,  and  have  been  held 
both  pertinent  and  admissible.  Stea- 
gald r.  State,  22  Tex.  App.  464  (1886)  ; 
s.c.  9  Cr.  L.  Mag.  515 ;  3  S.  W.  Rep. 
771.  Where  the  capacity  of  the  horse, 
defendant  is  said  to  have  been  riding, 
for  swiftness,  is  material  on  account 
of  the  distance  he  had  to  ride  and  the 
time  within  which  he  had  to  make  it, 
his  declarations  are  admissible  about 


such  capacity.  Fraser  v.  State,  55 
Ga.  325. 

3  McManus  v.  State,  36  Ala.  285 
(1860).  See  Clampitt  i-.  State,  9  Te.x. 
App.  27  (1881). 

^  On  a  trial  of  A  for  the  murder  of 
B,  evidence  of  A's  doings  and  sayings, 
indicating  apprehension  on  his  own 
account  because  of  B's  condition,  held 
admissible.  Tooney  v.  State,  8  Tex. 
App.  452  (1880). 

«  See  Brunet  v.  State,  1-2  Tex.  App. 
521  (1883). 

*•  In  Powers  v.  State,  23  Tex.  App. 
42  (1887)  ;  s.c.  5  S.  W.  Rep.  153,  it  is 
said  that  the  testimony  of  a  witness 
that  the  defendant  having  fled  on 
horseback  immediately  after  the  kill- 
ing, on  being  told  by  a  bystander  that 
the  deceased  was  dead,  the  witness 
pursued  him,  and  in  about  five  minutes 
overtook  him,  and  told  him  to  hold 
up,  if  he  did  not  he  would  kill  him, 
and  that  the  defendant,  having  held 
up,  in  reply  to  witness's  statement 
that  he  must  go  back  to  town  with 
him,  that  he  had  killed  the  deceased, 
stated  if  he  did  nobody  saw  him,  is 
admissible  as  part  of  the  res  gestce,  al- 
though the  confession  was  made  at 
the  time  when  the  defendant  was 
under  arrest  and  in  fear  of  death. 

"  In  Perkins  v.  State,  60  Ala.  7 
(1877),  it  is  said  that,  on  a  trial  for 
murder,  the  prisoner's  voluntary  offer 
to  the  jailer  who  had  him  in  charge, 


476 


HOMICIDE. 


[chap.  XXII. 


In  Brunet  v.  State,^  immediately  after  the  homicide  the 
defendant  voluntarily  admitted  to  a  witness  that  he  had  tired 
upon  the  deceased  in  self-defence,  and  proposed  to  surrender 
himself ;  and  the  court  held  these  declarations  admissible  as 
part  of  the  res  gestce.  And  it  is  said  in  McManus  v.  State,  ^ 
that  where  it  was  shown  that  the  deceased  was  killed  by  a 
blow  from  a  brickbat  in  a  fight  with  the  prisoner,  evidence  is 
admissible  to  show  that  the  prisoner  returned  to  the  scene  of 
the  fight  about  an  hour  after  the  blow  was  given,  with 
a  pistol  in  his  hand,  saying  that  he  had  come  to  kill  the 
deceased.^ 

Sec.  431.  Same  —  Proof  of  by  defence.  —  As  a  general 
rule,  no  declarations  made  by  the  defendant  a'fter  the  time 
of  the  commission  of  the  homicide  with  which  he  is  charged, 
are  admissible  in  his  favor,  unless  they  form  part  of  the  res 
gestce.^  Thus  a  party  on  trial  for  murder  is  entitled  to  prove 
his  declarations  made  at  the  time  and  place  of  the  shooting. 


to  tell  all  he  knew  about  the  homicide 
of  which  he  was  accused,  if  the  jailer 
would  promise  that  he  should  not  be 
hurt  for  it ;  and  his  similar  offer  to  a 
fellow-prisoner,  if  the  latter  would 
promise  never  to  tell  any  one  else  ; 
which  proposals  being  rejected,  no 
confessions  were  made  b\'  him,  are 
admissible  evidence  for  the  prosecu- 
tion. 

In  State  v.  Hinkle,  G  Iowa,  380 
(1858),  on  a  trial  for  murder  by  poi- 
soning the  prisoner's  wife  witli  strych- 
nine, evidence  was  admitted  that,  upon 
being  asked,  while  in  jail,  whether  he 
did  not  get  arsenic  to  kill  rats  witli, 
tiie  prisoner  answered  tliat  he  did, 
and  being  asked  wiiero  he  got  it,  re- 
plied that  it  was  none  of  the  inquirer's 
business.  The  court  held  that  these 
facts  formed  a  link  in  the  chain  of 
proof,  and  were  therefore  admissible. 

1  12  Tex.  App.  521  (1883). 

'^m  Ala.  285  (1860). 

''  In  Clampitt  v.  State.  0  Tex.  Ajip. 
27  (1881),  on  the  trial  of  C.  for  the 
murder  of  M.,  testimony  of  A.  tli;it 
M.,  after  being  mortnlly  wounded  l)y 
C,   was    carried    to    A.'s    house;  and 


that,  on  the  next  night  afterwards,  A. 
heard  some  one  near  the  house  say, 
"  1  wish  I  had  a  double-barrelled  shot- 
gun ;  I  would  turn  both  barrels  loose 
in  that  room,"  and  looking  out  saw 
C,  and  no  otiier  person,  held  to  be  ad- 
missible as  tending  to  prove  malice. 

•*  State  V.  Brandon,  8  Jones  (N.  C.) 
L.  40.3  (1862);  s.c.  Law.  Insan.  144. 
See  Territory  v.  Clayton,  8  Mont.  Tr. 
1  (1888)  ;  s.c.  19  Pac.  Rep.  293  ;  State 
V.  Tilly,  3  Ired.  (N.  C.)  L.  424  (1843); 
Honeycutt  r.  State,  8  Baxt.  (Tenn.) 
371  (1875)  ;  Bonnard  v.  State,  25  Tex. 
App.  173  (1888) ;  s.c.  8  Am.  St.  Rep. 
431  ;  7  S.  W.  Rep.  802  ;  Li/nch  v.  Slnte, 
24  Tex.  App.  350  (1887)  ;  s.c.  5  Am. 
St.  Rep.  888 ;  6  S.  W.  Rep.  190 ;  Gib- 
son r.  State,  23  Tex.  App.  414  (1887); 
Harrison  v.  State,  20  Tex.  App.  327 
(1880)  ;  s.c.  54  Am.  Rep.  529;  Pharr 
r.State,9Tex.  App.  129(1881);  s.c.  10 
Tex.  App.  485  ;  Foster  v.  State,  8 
Tex.  App.  248  (1880)  ;  Shrivers  v. 
State.  7  Tex.  App.  450  (1880)  ;  Little 
r.  Commonwealth,  25  Graft.  (Va.) 
921  (1874)  ;  State  r.  Abbott,  8  W.  Va. 
741  (1875);  United  States  ;;.  Never- 
son,  1  Mackey  (D.  C.)  152  (1880). 


SEC.  431.] 


EVIDENCE COMrETENCE. 


4V7 


wliicli  caused  the  daatli  of  the  party  killed,  because  tlie 
declarations  thus  made  form  part  of  the  res  ijestce;'^-  hut  he 
cannot  put  in  evideuce  declarations  made  fifteen  minutes  or 
more  after  the  homicide  occurred,  and  after  he  had  gone  some 
distance  from  the  place  where  the  homicidj  was  committed, 
because  they  are  no  part  of  the  res  t/estte  ;  2  neither  can  he  be 
permitted  to  put  in  evidence  his  own  account  of  the  trans- 
action related  immediately  after  it  occurred,  thougli  no  third 
person  was  present  when  the  homicide  was  committed ;  ^  or 


1  See  Thomas  i-.  State,  27  Ga.  287 
(1859) ;  Harrison  ;■.  State,  20  Tex. 
App.  327  (188G) ;  Foster  v.  State,  9 
Tex.  App.  248  (1880)  ;  Little  v.  Com- 
monwcaltli,25  Gratt.  (Va.)  921  (1874); 
"state  V.  Abbott,  8  W.  Va.  741 
(1875). 

In  Little  v.  Commonwealth,  25 
Gratt.  (Va.)  921  (1874),  it  is  said 
that  on  the  trial  of  a  prisoner  for 
murder,  a  statement  made  by  him  to 
a  person,  a  few  minutes  after  tlie 
homicide  was  committed,  and  near  to 
the  place,  and  in  the  presence  and 
hearing  of  eyewitnesses  of  the  liomi- 
cide,  wlio  were  not  introduced  as  wit- 
nesses by  the  Commonwealth,  should 
be  admitted  as  evidence  at  the  instance 
of  the  prisoner  as  part  of  the  res  qes1(e. 
In  Harrison  r.  State,  20  Tex.  App.  .327 
(1886),  statements  made  by  tlie  de- 
fendant three  or  four  minutes  after 
he  had  shot  the  deceased,  to  the  effect 
that  he  did  it  to  "protect  his  wife  and 
child,"  were  held  to  be  admissible  in 
his  defence,  as  of  the  res  (jestce,  and  as 
explanatory  of  nearly  similar  state- 
ments made  at  about  the  same  moment 
and  introduced  in  evidence  by  the 
prosecution.  And  in  Foster  r.  State, 
8  Tex.  App.  248  (1880),  evidence 
offered  by  the  defendant  wlien  on 
trial  for  murder,  that  within  less  than 
a  minute  after  he  shot  the  deceased, 
he,  the  defendant,  exclaimed,  "  I 
would  shoot  any  man  who  was  trying 
to  cut  my  throat,"  was  held  to  be 
improperly  excluded,  because  the  ex- 
clamation   was   part  of  the  res  qestce. 

-  See  Doles  v.  State,  97  Ind.  555 


(1884)  ;  State  v.  Johnson,  .35  La.  An. 
908  (1883);  Lynch  v.  State,  24  Tex. 
App.  350  (1887)  ;  s.c.  5  Am.  St.  Rep. 
888;  6  S.  W.  Rep.  190;  Gibson  v. 
State,  23  Tex.  App.  414  (1887);  s.c. 
5  S.  W.  Rep.  314. 

Declarations  of  the  accused,  made 
an  hour  after  tlie  time,  and  a  mile 
from  tiie  place  of  tlie  homicide,  are 
not  admissible  as  part  of  the  res  gesta. 
State  V.  Johnson,  35  La.  An.  968 
(1883).  Evidence  that  on  the  night 
of  the  homicide  the  accused  had,  at  a 
place  at  about  a  mile  and  a  quarter 
from  the  scene  of  the  killing,  stated 
he  had  just  been  waylaid  by  the  de- 
ceased, are  not  admissible  as  part  of 
the  res  qestcp.  Doles  r.  State,  97  Ind. 
555  (1884).  On  a  trial  for  murder 
the  state  proved  the  acts  and  declara- 
tions of  the  defendant  just  before  and 
after  the  homicide.  The  court  held 
that  the  defendant  could  not  put  in  evi- 
dence his  statements  made  to  a  wit- 
ness twelve  days  after  the  homicide 
with  respect  to  the  defendant's  decla- 
rations at  the  time  of  the  homicide. 
And  the  statute  declaring  that  when 
a  detailed  act  or  declaration  is  given 
in  evidence,  any  other  act  or  declara- 
tion necessary  to  explain  it  may  also 
be  given  in  evidence,  does  not  affect 
the  case.  Gibson  >:  State,  23  Tex. 
App.  414  (1887)  ;  s.c.  5  S.  W.  Rep. 
314. 

3  State  V.  Tilly,  3  Ired.  (N.  C.)  L. 
424  (184.3).  See  United  States  v. 
Neverson,  1  Mackey  (D.  C.)  152 
(1880). 


478  HOMICIDE.  [chap.  xxii. 

declarations  that  a  confession  of  the  homicide  formerly  made 
are  false,  and  were  made  through  fear.^ 

But  where  the  prosecution  has  been  permitted  to  prove  a  con- 
versation or  declaration  by  the  defendant,  it  is  proper  for  him 
to  put  in  evidence  any  other  declaration  necessary  to  make  it 
understood,  or  to  explain  it.^  Thus  it  is  held  in  Pharr  v. 
State  ^  that  a  statement  made  by  the  accused  when  arrested, 
thirty  miles  from  the  scene  of  the  homicide,  as  to  his  purpose 
in  abruptly  departing,  is  not  admissible  in  his  behalf  as 
part  of  the  res  gestoi ;  but  that  where  the  state  has  elicited 
testimony  that  the  accused  claimed  certain  property  found  in 
his  possession,  and  supposed  to  belong  to  the  deceased,  the 
defence  has  a  right  to  show  what  the  accused  said  about  the 
killing,  under  a  statute  ^  declaring  that,  when  part  of  a  con-, 
versation  has  been  given,  the  whole  may  be  inquired  into. 
And  it  is  said  in  Shrivers  v.  State  ^  that  where,  on  a  trial  for 
murder,  the  state  has  been  allowed,  without  objection,  to 
prove  what  the  defendant,  after  arrest  and  uncautioned,  said 
respecting  his  possession  of  the  deceased's  pistol,  that  he 
should  be  permitted  to  prove  any  fact  or  circumstance,  or 
any  declaration  made  by  himself  at  the  time  or  immediately 
afterwards,  tending  to  explain  or  impair  such  proof. 

Sec.  432.    Same  —  Declarations  of  an  accomplice.  —  The 

declarations  of  an  accomplice  are  admissible  in  evidence 
against  his  fellows  when  they  are  either  complete  in  them- 
selves, or  accompany  and  explain  acts  for  which  others  are 

1  Honeycutt     v.    State,     8     Baxt.  held   that  under  the  Texas   Code   of 

(Tciin.)  371  (1875).  Criminal  Procedure,  article  751,  pro- 

-  See  Territory  v.  Clayton,  8  Mont,  vidinfj  that  wlien  a  detailed  conversa- 

1    (1888)  ;    s.c.    19    Pac.    Kep.    20:5;  tion  is  given  in  evidence,  any   otlier 

Bonnard   v.  State,  25    Tex.  App.  173  declaration  necessary  to  make  it  un. 

(1888);  s.c.  8  Am.  St.   Rep.  431;  7  derstood,  or  explain   the   same,  may 

S.   W.   Rep.   8(12;  Pharr    v.    State,    9  also    be    given,    the    defendant    was 

Tex.    App.  129  (1881);    s.c.   10  Tex.  entitled    to    show    that    later    on    the 

App.  485;   Shrivers   v.   State,  7   Tex.  same    evening    he    made    a    different 

App.  450  (1880).  statement   to    his    brother,    and    ex- 

In  Bonnard  v.  State,  25  Tex.  App.  plained  to  him  the  reasons  for  making 

173  (1888)  ;  s.c.  8  Am.  St.  Rep.  431  ;  tlie  former  statement. 

7  S.   W.  Rep.  802,  shortly  after  the  3  (>  'Pex.   App.  129  (1881)  ;  s.c.  10 

defendant  shot  the  deceased  he  made  Tex.  .App.  485. 

a  false  statement  to   certain   persons  ■*  Tex.  Code  Cr.  Proo.,  art.  751. 

about  the  shooting,  which  was  given  ^  7  Tex.  App.  450  (1880). 
in  evidence  by  the  state.     The  court 


SEC.  433.] 


EVIDENCE  —  COMPETENCE. 


479 


responsible  ;  but  not  where  they  are  in  the  nature  of  narra- 
tives, descriptions,  or  subsequent  confessions,^  And  where 
two  are  jointly  charged  with  one  offence,  if  statements  be 
made  by  one,  the  silence  of  the  other,  and  his  failure  to  make 
any  explanation,  cannot  be  introduced  in  evidence  against  him.- 

Sec  433.  Confessions.  —  A  confession  made  by  the  pris- 
oner is  admissible  in  evidence  against  him  only  when  made 
voluntarily,  and  not  under  the  pressure  of  undue  influence, 
exercised  through  menaces  or  threats  or  promises  of  reward, 
or  immunity  from  prosecution.^  Such  confession  must  be 
taken  as  a  whole,  and  all  together,  for  it  is  neither  justice 
nor  I'eason  to  accept  the  statements  of  the  defendant  as  to 
his  connection  with  the  homicide,  unless  in  its  entirety  and 
full  signiticance.'* 

Thus  a  confession  of  homicide  made  to  three  armed  men, 
upon  their  arresting  and  accusing  the  defendant,  is  involun- 
tary and  inadmissible.^ 

All  confessions  under  menace  are  inadmissible  in  evidence. 
In  State  v.  Crowson,^  on  the  trial  of  an  indictment  for  the 


1  Gore  V.  State,  58  Ala.  391  (1877)  ; 
Priest  V.  State,  10  Neb.  390  (1880)  ; 
s.c.  6  N.  W.  Rep.  408 ;  State  v.  Tliibeau, 
30  Vt.  100  (1858). 

-  Commonwealth  v.  McDermott, 
123  Mass.  441  (1877) ;  Commonwealth 
V.  Walker,  95  Mass.  (13  Allen)  570 
(1866). 

^  Lang  v.  State,  84  Ala.  1  (1887); 
S.c.  5  Am.  St.  Rep.  324 ;  4  So.  Kep. 
193;  Steele  v.  State,  83  Ala.  20  (1887)  ; 
s.c.  3  So.  Rep.  547 ;  Kelsoe  v.  State, 
47  Ala.  573  (1872)  ;  Mose  v.  State, 
36  Ala.  211  (18G0)  ;  Stafford  v.  State, 
55  Ga.  592  (1876)  ;  Holsenbake  v. 
State,  45  Ga.  43  (1872)  ;  State  v. 
Sopher,  70  Iowa,  494  (1886)  ;  s.c.  9 
Cr.  L.  Mag.  218;  30  N.  W.  Rep.  917  ; 
Huberts  v.  Commonwealth,  7  S.  W. 
Rep.  (Ky.)  401  (1888)  ;  People  v. 
Couo-hlin,  67  Mich.  466  (1887)  ;  s.c. 
35  N.  W.  Rep.  72  ;  People  v.  Folei/,  64 
Mich.  148  (1887)  ;  s.c.  9  Cr.  L.  Mag. 
345;  31  N.  W.  Rep.  94;  Alfred  v. 
State,  37  Miss.  296  (1859)  ;  State  v. 
Walker,  98  Mo.  95  (1888)  ;  s.c.  9 
S.  W.  Rep.  646  ;  People  v.  Deacons, 


109  N.  Y.  374  (1888)  ;  s.c.  16  N.  E. 
Rep.  676;  People  v.  Druse,  103  N.  Y. 
655  (1886)  ;  s.c.  9  Cr.  L.  Mag.  88 ; 
8  N.  E.  Rep.  733  ;  Murphy  v.  People, 
63  N.  Y.  590  (1876)  ;  State  v.  Crow- 
son,  98  N.  C.  595  (1887)  ;  s.c.  4  S.  E. 
Rep.  143;  State  v.  Dildy,  72  N.  C. 
325  (1875)  ;  State  v.  Mitchell,  Piiill. 
(N.  C.)  L.  447  (1868)  ;  Brown  v.  Com- 
monwealth, 76  Pa.  St.  319  (1874)  ; 
Maples  V.  State,  3  Heisk.  (Tenn.)  408 
(1872)  ;  Ake  v.  State,  31  Tex.  416 
(1868)  ;  Ross  v.  State,  23  Tex.  App. 
689  (1887)  ;  s.c.  5  S.  W.  Rep.  184  ; 
Boyett  V*  State,  26  Tex.  App.  689 
(1886)  ;  s.c.  9  S.  W.  Rep.  275;  State 
V.  McDonnell,  32  Vt.  491  (1860)  ; 
Yelm  .Jim  v.  Territory,  1  Wash.  Tr. 
N.  S.  63  (1859).  See  Commonwealth 
V.  Cuffee,  108  Mass.  285  (1871). 

*  See  1  Greenl.  Ev.  (14th  ed.) 
§218. 

5  State  V.  Dildv,  72  N.  C.  325 
(1875). 

«  98  N.  C.  595  (1887)  ;  s.c.  4  S.  E. 
Rep.  143. 


480  HOMICIDE.  [chap.  XXII. 

murder  of  a  cliild  by  drowning,  it  appeared  that  the  prisoner 
liad  been  told  that  she  had  to  tell  what  she  had  done  with 
the  child,  and  that  otherwise  they  would  get  after  her  about 
it.  Evidence  was  admitted  to  show  that  the  prisoner  then 
accompanied  a  deputy  sheriff  to  a  stream,  in  wliich  the  body 
was  afterwards  found,  and  had  said  if  any  one  wanted  their 
negroes  drowned  to  bring  them  to  her.  The  court  held  that 
the  confession  was  made  under  menace,  and  was  not  admissible. 

All  forced  confessions  to  officers  are  inadmissible  in  evi- 
dence. But  it  is  said  in  Commonwealth  v.  Cuffee  ^  that  the 
fact  that  two  officers  had  arrested  a  negro  boy  thirteen  years 
old,  without  a  warrant,  searched  and  stripped  him,  confined 
him  in  a  police  cell,  and  questioned  him  for  two  hours  with- 
out warning  of  his  right  not  to  answer,  or  offering  to  permit 
him  to  consult  friends,  did  not  render  his  confessions  inad- 
missible, on  the  trial  for  murder ;  and  that  it  was  for  the  jury 
to  judge  of  the  effect.  And  in  Ross  v.  State  ^  A.,  suspected  of 
murder,  on  being  brought  to  the  marshal  of  police,  was  asked 
by  the  officer  where  he  got  the  body  that  was  taken  by  him 
to  a  certain  place  on  a  specified  evening,  and  being  satislied 
that  he  was  evading,  the  officer  said  to  him,  "  You  are  not 
telling  the  truth."  Afterwards,  the  officer  being  informed 
that  A.  wished  to  tell  all  about  the  crime,  said  to  him,  "  Go 
on  now,  if  you  want  to  make  your  statement."  On  the  trial 
of  A.  for  the  murder  his  confession  made  under  the  circum- 
stances to  the  officer  was  held  to  be  admissible  in  evidence, 
and  did  not  contravene  the  rule  prohibiting  involuntary  con- 
fessions. 

Sec.  434.  Same  —  Kiiowlertgre  of  effect. —  The  confession 
should  be  made  voluntarily  and  deliberately,  and  under  cir- 
cumstances which  show  the  calm  condition  of  the  mind,  and 
consciousness  of  the  effect  of  confessing  the  commission  of 
the  act  charged.'"'     In  State  v.  Soplier*  the  supreme  court  of 

M08  Ma?s.  285  (1871).  811     (1846);     People    v.    Foley,    64 

2  23  Tex.  App.  08!)  (1887);  s  c.  Midi.  148  (1887);  s.c.  9  Cr.  L.Mao;. 
6  S.  \V.  Hep.  184.  .",45;    :n   N.    W.  Rep.    94;    Maples   r. 

3  See  Steele  v.  State,  8-3  Ala.  20  State,  :]  Ileisk.  (Tenn.)  408  (1872); 
(1887)  ;  s.c.  P,  So.  Hep.  547;  Brister  Hawk.  P.  C.  b.  2,  c.  46,  §  P,,  n.  (2) ;  1 
V.  State,  26  Ala.  107  (1855)  ;  State  r.  Cliitt.  Cr.  L.  85;  Joy  on"  Confessions, 
Soplier,  70  Iowa,  494   (1886);  s.c.  9  100-109. 

Cr.  L.  Mag.  218;  P,0  N.  \V.  Hep.  917  ;  *  70  Iowa,  494   (1886)  ;    s.c.  9  Cr. 

Vaughn    i:    Ilann,  0   IJ.   Mon.    (Ky.)     L.  Mag.  218;  30  N.  W.  Hep.  917. 


SEC.  435.]  EVIDENCE  —  COMPETENCE.  481 

Iowa  held  that  on  the  trial  of  an  indictment  for  murder,  ' 
testimony  of  the  officer  who  arrested  the  defendant,  showing 
an  admission  made  by  him  that  he  committed  the  crime,  is 
competent  when  it  appears  that  the  admission  was  made 
voluntarily  and  Avithout  the  influence  of  hope  or  fear,  and 
not  even  made  in  response  to  questions  asked  by  the  officers. 

Greenleaf  says  that  evidence  of  verbal  confessions  of  guilt 
is  to  be  received  with  great  caution,  and  adds  :  "  Besides  the 
danger  of  mistake,  from  the  misapprehension  of  witnesses, 
the  misuse  of  words,  the  failure  of  the  party  to  express  his 
own  meaning,  and  the  infirmity  of  memory,  it  should  be  re- 
collected that  the  mind  of  the  prisoner  himself  is  oppressed  by 
the  calamity  of  his  situation,  and  that  he  is  often  influenced 
by  motives  of  hope  or  fear  to  make  an  untrue  confession."  ^ 

It  is  said  in  ]\Iaples  v.  State  ^  that  a  confession  under  notice 
to  the  accused  that  he  could  not  be  compelled  to  tell,  and 
that  his  statement  would  be  evidence  against  him,  is  admis- 
sible, although  on  being  arrested,  on  a  day  previously,  he  had 
confessed  to  another  person  without  such  notice,  and  undei" 
advice  that  it  might  procure  his  release. 

Sec  435.  Same  —  To  whom  made.  —  It  is  immaterial  to- 
Avhom  the  confession  is  made,  the  weight  of  the  evidence- 
setting  it  out  being  for  the  jury  to  determine.^  Where  a 
defendant,  who  was  charged  with  murder,  while  confined  in  a 
closed  room  with  a  man  after  arrest,  made  an  im'probable 
statement  as  to  the  circumstances  of  the  killing,  and  being 
afterwards  told  by  the  man's  brother  that  his  story  was  im- 
possible and  would  not  be  believed,  that  physicians  would 
be  put  on  the  stand  to  refute  it,  and  that  he  "  must  tell  a 
straighter  tale  if-  he  hoped  to  be  believed,"  thereupon  made 
confessions,  the  court  held  they  were  admissible  in  evidence 
against  him.^ 

A  confession  made  by  a  defendant  indicted  for  murder  to 
a  fellow-prisoner  who  was  in  jail  for  stealing,  and  who  was 

1  See  1  Grcenl.  Ev.  (14th  cd.)  Or.  L.  Mag.  .345;  .31  N.  W.  Rep.  94; 
§  214.                        ■  State   v.   Mitchell,  Phill.   (N.   C.)  L. 

2  3  Heisk.  (Tenn.)  408  (1872).  447  (1868)  ;  Brown  ?\  Commonwealth, 

3  See  Steele  v.   State,  83  Ala.  20  70  Pa.  St.  319  (1874). 

C1887)  ;  s.c.  3  So.  Kep.  547  ;  Stafford  *  Steele  v.  State,  83  Ala.  20  (1887)  ; 

r.  State,  55  Ga.  592  (1870) ;  People  r.     s.c.  3  So.  Rep.  547. 
Foley,  64    Mich.    148    (1887)  ;    s.c.  9 

31 


482  HOMICIDE.  [chap.  XXII. 

grossly  irreligious,  but  who  read  the  Bible  and  sang  psalms  to 
him,  and  told  him  that  if  he  was  guilty  he  had  better  confess 
and  seek  his  God,  is  admissible.^  A  confession  of  murder 
made  to  a  fellow-prisoner  after  the  latter's  assurance  that  one 
criminal  cannot  testify  against  another,  has  been  held  by  the 
North  Carolina  supreme  court  to  be  admissible  in  evidence 
against  him.^  In  Brown  v.  Commonwealth  ^  a  person  confined 
in  jail  with  the  accused  testified  that  he  held  a  conversation 
with  the  accused  through  the  soil-pipes,  in  which  he  confessed 
to  the  witness  that  he  was  guilty  of  the  homicide  charged, 
and  that  the  witness  knew  that  he  was  the  accused  from  his 
voice,  and  the  court  held  that  the  testimony  was  admissible ; 
its  weight  being  for  the  jury. 

In  the  case  of  People  v.  Foley,*  on  the  trial  of  an  indict- 
ment for  murder,  it  appearing  that  a  full  examination  of  the 
manner  in  which  a  written  statement  was  obtained  from  the 
accused  by  the  public  prosecutor  was  gone  into  before  it  was 
admitted ;  and  the  record  disclosing  no  undue  influence  in 
obtaining  it,  and  it  futher  appearing  that  the  accused  was  one 
of  the  two  persons  who  alone  could  have  known  of  the  facts 
of  the  homicide  at  the  time  it  occurred,  it  was  held  that  such 
statement  was  properly  admitted  in  evidence  against  the 
accused. 

Sec.  436.  Same  —  Confessions  by  accomplice. —  Where 
two  or  more  persons  are  jointly  indicted  for  the  same  homi- 
cide, a  confession  by  one,  made  in  the  presence  of  the  others, 
can  only  affect  him.  It  is  not  admissible  in  evidence  against 
the  others,  and  its  proof,  as  against  him,  creates  no  proof  or 
presumption  against  his  co-defendant.^  And  where  statements 
are  made  by  one  of  two  jointly  charged  with  an  offence,  the 
silence  of  the  other,  and  his  failure  to  make  any  explanation, 
is  not  to  be  used  against  him.*^     But  it  is  said  in  Cobb  v. 

1  Stafford    v.    State,    55    Ga.    502  Tiiomi)snn,  !)0  Mass.  444  (1808)  ;  Ake 

(1870).  V.  State,  ?,\  Tex.  410  (1808);  s.c.  30 

•^  State  V.  Mitchell,  riiill.  (N.   C.)  Tex.  400 ;  Spencer  v.  State,  31   Tex. 

L.  447  (1808).  04  (1808)  ;  Reg.  v.  Hinks,  1  Den.  C.  C. 

3  70  Pa.  St.  3in  (1874).  84    (1845)  ;    Kex    v.  Turner,    1    Moo. 

*04  Mich.   148   (1887);    s.c.  9  Cr.  C.  C.  347   (1832);    Reg.  v.  Blake,  6 

L.  M:ig.  315,  31  N.  W.  Kep.  94.  Q.  R.  120  (1844)  ;  Rex  i-.  Appleby,  3 

Mvelsoe     r.    State,    47    Ala.     573  Stark.  33  (1820). 

(1872);    State   r.   Weasel,  30  Ln.  An.  '>  rommonwenlth     r.    ]\IcDermott, 

]  t.  11.  910  (1878)  ;  Commonwealth   v.  123  Mass.  441  (1887)  ;  Commonwealth 


SEC.  438.]  EVIDENCE — COMPETENCE.  483 

State  1  that  where  a  defendant,  who  is  jointly  indicted  for 
murder  with  another,  who  has  pleaded  guilty,  is  appealed  to 
by  that  other  who  must  know  his  guilt,  if  guilty,  to  confess 
the  crime,  and  he  simply  refuses  to  confess,  but  does  not  deny 
his  guilt,  the  circumstance  may  be  given  in  evidence  to  the 

The  declarations  or  confessions  of  an  accomplice  are  re- 
ceivable against  his  fellows  only  when  they  are  either  com- 
plete in  themselves,  or  accompany  and  explain  acts  for  which 
the  others  are  responsible :  but  not  where  they  are  in  the 
nature  of  narratives,  descriptions,  or  subsequent  confessions.^ 

Sec.  437.  Physical  superiority  of  defendant.  —  Where, 
upon  the  trial  of  an  indictment  for  homicide,  the  accused  relies 
upon  the  plea  of  self-defence,  it  is  proper  for  the  prosecution 
to  prove  the  great  physical  superiority  of  the  defendant  over 
the  deceased  as  tending  to  rebut  any  inference  of  great 
danger  of  death  or  of  bodily  harm  to  the  defendant  from  the 
deceased  ;  but  otherwise  the  physical  powers  of  the  defendant 
are  immaterial.^ 

Sec.  438.  Same  —  Character  and  disposition  of  defend- 
ant.—  Where  there  is  a  doubt  whether  the  homicide  was 
committed  by  the  defendant,  or  whether  his  commission  of  it 
was  felonious,  it  is  competent  for  the  defendant  to  prove  his 
peaceable  character  and  good  reputation  in  any  and  all 
respects  related  to  the  subject-matter  of  the  prosecution,*  and 

V.  Walker,  95  Mass.   (1-3  Allen)  570  Dec.  93 ;    Stephens  v.  People,  4  Park. 

(18G6).  Cr.  Cas.  (N.  Y.)  396  (1859)  ;  People  v. 

1  27  Ga.  648  (1859).  Hammill,  2  Park.  Cr.  Cas.  (N.  Y.)  223  ; 

2  Gore  I'.  State,  58  Ala.  .391  (1877)  ;  (1855)  ;  Catiicart  v.  Commonwealth, 37 
Priest  V.  State,  .10  Neb.  393  (1880);  Pa.  St.  108  (1860).  See  People  v. 
s.c.  6  N.  W.  Hep.  468 ;  State  v.  Thi-  Stewart,  28  Cal.  395  (1865)  ;  Murphy 
beau,  30  Vt.  100  (1858).  v.  People,  9  Colo.  435  (1886)  ;  s.c.  13 

3  See  Hinch  v.  State,  25  Ga.  699  Pac.  Rep.  528;  Davis  v.  State,  10  Ga. 
(1858).  101   (1851);    McCarty  i-.   People,  51 

4  Dnpree  v.  State,  33  Ala.  .380  111.  231  (1809) ;  Achey  v.  State,  64 
(1859);  s.c.  73  Am.  Dec.  422;  Hopps  Ind.  5G  (1878);  Beaucliamp  v.  State, 
V.  People,  31  111.  385  (1863)  ;  s.c.  83  6  Elackf.  (Ind.)  300  (1842)  ;  State  v. 
Am.  Dec.  231;  Law.  Insan.  444;  State  Moelohen,  -53  Iowa,  310  (1880);  s.c. 
V.  Sterrett,  71  Iowa,  386  (1887)  ;  s.c.  5  N.  W.  Rep.  186  ;  State  v.  Dumphey, 
32  N.  W.  Rep.  .387  ;  68  Iowa,  76;  s.c.  25  4  Minn.  438  (1860)  ;  People  v.  Gar- 
N,  W.  Rep.  7.36 ;  State  v.  Cross,  68  butt,  17  Mich.  9  (1868)  ;  s.c.  97  Am. 
Iowa,  180  (1885);  s.c.  26  N.  W.  Rep.  Dec.  162;  Law.  Insan.  463;  State  v. 
62 ;  McDnniel  v.  Slnte,  16  MisS.  (8  Grate,  68  Mo.  22  (1878)  ;  Thomas  v. 
Snicd.  &  M.)  401  (1847)  ;  s.c.  47  Am.  People,  67  N.  Y.  218  (1876)  ;   Warren 


484  HOMICIDE.  [chap.  XXII. 

the  defence  is  not  limited  to  proof  of  such,  reputation  in 
the  community  where  he  lives.'  Where  such  proof  is  intro- 
duced by  the  defendant,  it  is  proper  for  the  prosecution  to 
introduce  evidence  in  rebuttal  thereof  ;2  but  this  evidence 
must  be  of  general  character  or  reputation,  and  not  of  indi- 
vidual acts.^ 

As  a  general  rule,  the  defendant's  character  cannot  be  at- 
tacked by  the  prosecution  in  the  first  instance,  nor  is  it  a  proper 
subject  for  consideration  ■*  unless  inseparably  connected  with 
the  7'es  [/estce,  and  forming  a  part  thereof.^  Thus  it  is  proper 
to  show  that  the  homicide  took  place  in  a  bawdy-house,  and 
that  the  defendant  was  its  proprietress,  where  these  facts 
make  the  res  (jestce  more  intelligible.'' 

Where  a  prisoner  is  charged  with  the  commission  of  a 
crime,  and  evidence  of  good  character  is  introduced  by  him, 
which  is  not  controverted  on  the  part  of  the  people,  such 
evidence  is  to  be  considered  by  the  jury,  and  is  not  merely 
of  value  in  doubtful  cases,  but  will  of  itself  sometimes  create 
a  doubt  when,  w^ithout  it,  none  could  exist ;  and  if  good  char- 
acter be  proved  to  the  satisfaction  of  the  jury,  it  should  pro- 
duce an  acquittal,  even  in  cases  where  the  whole  evidence 
slightly  prepoiulerated  against  the  accused.^ 

Sec.  439.  Same  —  Peacef ulness  of  character.  —  Evidence 
of  good  character  as  a  peaceable  man  is  of  no  avail  except  in 
thoseji  cases  where  it  is  a  question  whether  the  homicide  was 
committed  by  the  accused ;  and  if  the  defendant  admits  the 
homicide,  and  seeks  to  justify  his  act  on  the  ground  of  self- 
defence,  such  evidence  will  not  have  any  application  to  the 
case,  except  as  it  may  remotely  bear  upon  the  truthfulness  of 

V.     Commonwealth,    ?,7    Pa.    St.    45  *  State  r.  Merrill,  2  Dev.   (N.  C.) 

(1860)  ;  s.  c.  Law.  Insan.  809  ;  Gibson  L.  20'.)  (18-JJ)). 

V.  State,  23  Tex.  App.  414  (1887) ;  s.c.  ^  See  Spies  v.  People  (Anarchists' 

5  S.  W.   Kep.  .314;   Compare  Walker  Case),  122  111.  1  (1887)  ;  s.c.  9  Cr.  L. 

V.  State,  102  Ind.  502    (1885)  ;  s.c.  1  Map.  829;  .3  Am.  St.  Rep.  ,320;  6  Am. 

N.  E.  Uep.  85(5.  Cr.  Kep.  570;  12  N.  E.  Kep.  805;  Gib- 

1  State    V.    Cross,    08     Iowa,     180  son  v.  State,  23  Tex.  App.  414  (1887)  ; 

(1885)  ;  s.c.  26  N.  W.  Kep.  62;  State  s.c.  5  S.  W.  Kep.  314. 
V.  Sterrett,  68  Iowa,  76   (1885)  ;    s.c.  «  Gibson  v.  State,  23  Tex.  App.  414 

25  N.  W.  Kep.  9.36.  (1887)  ;  s.c.  5  S.  VV.  Rep.  314. 

■^  See  Beanchamp  !'.  State,6  Blackf.  "Stephens   v.  People,  4  Park.  Cr. 

(Inrl.)  300  (1842).  Cas.  (N.  Y.)  390  (1859). 

•5  McCarty    v.   People,  51    111.  231 
(1869). 


SEC.  440.]  EVIDENCE  —  COMPETP^NCE.  485 

the  story  told  by  the  defendant,  and  the  merit  of  his  defence.^ 
It  is  said  in  Cathcart  v.  Commonwealth  ^  that  on  the  trial  of 
an  indietment  for  murder,  it  is  not  error  to  rejeet  an  offer 
to  prove  that  the  prisoner  "always  had  been  known  as  a 
kind-hearted  man,"  if  the  rejection  be  accompanied  by  per- 
mission to  show  his  character  for  peacefiilness  and  regularity 
of  conduct  towards  the  deceased,  or  in  any  other  respect 
which  had  a  proper  relation  to  the  subject-matter  of  the 
prosecution.  In  Thomas  v.  People,^  after  the  witness  had 
testified  that  the  prisoner  was  a  quiet  man  and  good-natured, 
as  far  as  he  knew,  he  was  asked  to  "state  what  his  disposi- 
tion was  when  crossed  or  misused."  This  was  objected  to 
and  held  to  have  been  properly  excluded. 

Sec.  440.   Evidence  of  character  —  Negative  evidence. — 

The  right  of  a  defendant  on  trial  for  murder  to  introduce 
negative  evidence  of  character  was  conceded  by  the  supreme 
couit  of  Alabama  in  the  recent  case  of  Hussey  v.  State,* 
where  it  was  held  error  to  refuse  to  permit  the  defendant,  in 
an  indictment  for  murder,  in  introducing  evidence  of  his 
good  character,  to  ask  the  witness  if  he  had  "ever  heard  of 
the  defendant  having  any  other  difficulty  except  the  one  in 
question " ;  as  it  is  equivalent  to  the  inquiry  whether  the 
witness  had  ever  heard  anything  against  the  character  of  the 
defendant  for  quiet,  peace,  or  good  order.  This  evidence, 
though  negative  in  form,  is  often  more  satisfactory  than 
positive  evidence.  The  court  say :  "  The  ruling  of  the 
court  below  raises  in  this  case  a  question  of  evidence  which 
is  of  great  importance,  as  it  occurs  to  us,  in  the  practical 
administration  of  justice.  It  involves  the  right  of  a  de- 
fendant to  introduce  negative  testimony  in  support  of  his 
good  character,  —  a  right  which  does  not  seem  to  be  recog- 
nized by  the  old  text  writers  and  authorities,  but  may  be 
said  to  be  accorded  from  necessity  almost  universally  by  the 
nui  prius  courts  in  the  trial  of  causes.  The  defendant  was 
allowed  to  prove  his  good  character  generally  for  peace  and 
quiet,  —  an  issue  having  reference  to  the  nature  of  the  charge 

1  See  Davis  v.  State,   10  Ga.   101  »  67  N.  Y.  218  (1876). 

(1851).  *  87  Ala.  121  (1889)  ;  s.c.  6  So.  Rep. 

2  37  Pa.  St.  108  (1860).  420. 


486  HOMICIDE.  [chap.  XXII. 

against  him,  which  was  murder.  Two  witnesses  were  asked 
the  question  whether  they  had  '  ever  heard  of  the  defendant 
having  any  other  difficulty  except  the  one  in  question  ? ' 
The  question  was  objected  to  by  the  state,  and  on  such  oI> 
jection  it  was  excluded.  There  is  good  authority  in  support 
of  this  ruling  of  the  circuit  court,  but  we  are  all  of  one 
opinion,  that  the  question  should  have  been  allowed.  Bare 
evidence  by  a  witness  that  he  knows  the  general  character 
of  a  given  person,  and  it  is  good,  or  very  good,  or  excellent, 
is,  after  all,  closely  analogous  to  a  mere  opinion  in  the  nature 
of  a  fact,  and,  standing  alone,  carries  with  it  an  impression 
that  it  is  lacking  in  some  element  to  give  force  to  the  state- 
ment. The  party  testifying  can  render  it  more  satisfactorily 
and  convincing  by  showing  the  foundation  on  which  it  rests. 
It  is  well  to  prove  a  person  to  be  reputed  honest,  or  truthful, 
or  a  woman  chaste,  or  a  man  loyal  to  his  country,  or  peace- 
ably disposed  towards  all  his  neighbors.  But  great  emphasis 
is  added  by  the  declaration  that  the  witness,  who  has  had 
every  opportunity  to  know,  has  never  heard  any  human  being 
challenge  the  honesty  or  veracity  of  the  one,  or  breathe  the 
slightest  breath  of  suspicion  on  the  virtue  of  the  other,  or 
assert  any  fact  which  goes  to  deny  the  loyalty  or  question 
the  humanity  and  orderly  conduct  of  the  third.  It  is  only 
to  put  the  matter  in  a  slightly  different  form  to  inquire  of 
the  deposing  witness  whether  he  had  ever  heard  of  any  act 
or  conduct  in  refutation  of  the  good  repute  which  he  has 
affirmed  of  the  person  in  question.  To  say  his  character  is 
good  is  a  positive  expression  of  the  fact.  To  say  that  the 
witness  has  never  heard  anything  against  his  character,  as 
to  the  particular  phase  in  which  it  is  put  in  issue,  is  negative 
in  form,  but  often  more  satisfactory  than  evidence  of  a  posi- 
tive character.  .  .  .  Under  the  principle  established  by  these 
authorities  we  hold  that  the  circuit  court  erred  in  excluding 
the  question  propounded  as  to  whether  the  two  witnesses 
named  in  the  record  had  ever  heard  of  the  defendant's  hav- 
ing any  other  difficulty  except  the  one  in  question.  It  was 
equivalent  to  the  inquiry  whether  the  witness  had  ever  heard 
anything  against  the  character  of  the  defendant  for  (;[uiet, 
peace,  or  good  order,  and  should  have  been  allowed  by  the 
court.     The  question  propounded  calling  for  evidence  prima 


SEC.  441.]  EVIDENCE  —  COMPETENCE.  487 

facie,  relevant  and  legal,  the  refusal  to  allow  it  was  error, 
although  no  answer,  or  proposed  answer,  of  the  witnesses 
was  stated." 

Sec.  441.  Same  —  Reason  for  the  rule.  —  The  jDropriety 
of  this  rule  of  permitting  negative  evidence  of  good  character, 
is  gradually  forcing  itself  upon  the  recognition  of  the  courts, 
and  there  is  a  current  of  modern  authority  rapidly  forming 
in  support  of  it.  Mr.  Taylor,  in  his,  work  on  evidence,  after 
observing  that  the  term  "character"  is  not  synonymous  with 
"  disposition,"  but  simply  means  "  reputation,"  or  the  general 
credit  which  a  man  has  obtained  in  public  opinion,  observes 
as  follows  of  the  practice  of  the  English  judges  on  this  point : 
"  Aware  that  the  best  character  is  generally  that  which  is  the 
least  talked  about,  they  have  found  it  necessary  to  permit 
witnesses  to  give  negative  evidence  on  the  subject,  and  to 
state  that  they  'never  heard  anything  against  the  character 
of  the  person  on  whose  behalf  they  have  been  called.'  Nay, 
some  of  the  judges  have  gone  so  far  as  to  assert  that  evidence 
in  this  negative  form  is  the  most  cogent  proof  of  a  man's 
good  reputation."  ^  In  support  of  this  view  he  cites  the  late 
case  of  Reg.  v.  Rowtow,^  where  Cockburn,  C.  J.,  observes : 
"  I  am  ready  to  admit  that  that  negative  evidence  to  which 
I  have  referred,  of  a  man's  saying,  '  I  never  heard  anything 
against  the  character  of  the  person  of  whose  character  I  come 
to  speak,'  should  not  be  excluded.  I  think,  though  it  is 
given  in  a  negative  form,  it  is  the  most  cogent  evidence  of  a 
man's  good  character  and  reputation,  because  a  man's  char- 
acter does  not  get  talked  about  till  there  is  some  fault  to  be 
found  with  him.  It  is  the  best  evidence  of  his  character 
that  he  is  not  talked  about  at  all.  I  think  the  evidence  is 
admissible  in  that  sense." 

Mr.  Wharton  recognizes  the  same  principle,  and  says:  "In 
view  of  the  fact  that  '  the  best  character  is  generally  that 
which  is  the  least  talked  about,'  the  courts  have  found  it 
necessary  to  permit  witnesses  to  give  negative  evidence  on 
the  subject,  and  to  state  that  they  '  never  heard  anything 
against  the  character  of  the  person  on  whose  behalf  they  have 
been  called.' "  ^ 

1  1  Tayl.  Ev.  §  350.  3  Whart.  Cr.  Ev.  (8th  ed.)  §   58; 

2  10  Cox  C.  C,  25.  Whart.  Ev.  §  49;    and    to    the  same 


488  HOMICIDE.  [chap.  XXII. 

A  well-considered  case  in  direct  support  of  this  doctrine,  is 
that  of  State  v.  Lee,^  where  Berry,  J.,  observes  that,  "  A 
very  sensible  and  commendable  instance  of  the  relaxation  of 
the  old  and  strict  rule  is  the  reception  of  negative  evidence  of 
good  character  ;  as,  for  example,  the  testimony  of  a  witness 
who  swears  that  he  has  been  acquainted  with  the  accused 
for  a  considerable  time,  under  such  circumstances  that  he 
would  be  more  or  less  likely  to  hear  what  was  said  about 
him,  and  has  never  heard  any  remark  about  his  character,  — 
the  fact  that  a  person's  character  is  not  talked  about  at  all 
being,  on  grounds  of  common  experience,  excellent  evidence 
that  he  gives  no  occasion  for  censure,  or,  in  other  words, 
that  his  character  is  good."  It  was  held,  accordingly,  that  a 
witness  might,  when  a  proper  predicate  of  knowledge  had 
been  laid,  be  permitted  to  testify  negatively  to  one's  good 
character  by  affirming  that  he  had  never  heard  his  character 
discussed  or  spoken  of  by  any  one.  To  the  same  effect  is 
Gandolfo  v.  State,^  where  negative  evidence  of  a  defendant's 
good  character  was  allowed  to  be  given.  "  Such  evidence," 
it  was  said,  "  is  often  of  the  strongest  description,  as,  where  a 
character  for  truth  is  in  issue,  that  among  those  acquainted 
with  the  party  it  has  never  been  questioned :  and  so,  as  to 
character  for  peace  and  quietness,  that  among  those  with 
whom  the  party  associates  no  instance  has  been  known  or 
lieard  of  in  which  he  has  been  engaged  in  a  quarrel.  In 
State  V.  Nelson '5  the  same  rule  was  recognized,  and  a  witness 
was  allowed  to  testify  that  he  had  never  heard  anything 
against  the  defendant's  character  or  reputation :  the  court 
observing  that,  in  the  absence  of  such  a  rule,  "the  person 
who  had  so  far  lived  a  blameless  life  as  to  provoke  but  little 
discussion  respecting  his  character  would  oftentimes  be  utterly 
unable  to  support  his  character  when  assailed." 

In  the  case  of  Davis  ?'.  Foster,*  an  instruction  to  the  jury 
was  held  good  which  asserted  that  "if  a  man's  neighbors  say 
nothing  whatever  about  him,  as  to  his  truthfidness,  that  fact 
of  itself  is  evidence  that  his  general  reputation  for  truth  is 

purport  is  tlie  view  of  Mr.  Bishop,  1  ^  58  Iowa,  208  (1882)  ;  s.c.  12  N. 

Bish.  Cr.  IVoc.  (:W  eil.)  §  1117.  W.  Hep.  253. 

1  22  Minn.  407  (1870).  <  08  Ind.  238  (1880). 

2  11  Ohio  St.  114  (1860). 


SEC.  443.]  EVIDENCE  —  COMPETENCE.  '  489 

good."  And  in  Davis  v.  Franke,^  a  witness  who  had  an  oppor- 
tunity to  know  another's  character  was  allowed  to  testily  that 
he  never  heard  it  called  in  question ;  Staples,  J.,  ohserving : 
''  Possibly  in  many  cases  the  highest  tribute  that  can  be  paid 
to  the  witness,  is  that  his  reputation  as  a  man  ot"  veracity  is 
never  called  in  question,  or  even  made  the  subject  of  conver- 
sation in  the  community  where  he  resides." 

In  Childs  v.  State,"^  a  witness  who  claimed  to  know  the 
character  of  another  witness,  '•  but  nev^er  heard  his  character 
discussed,"  was  held  competent  to  speak  to  the  question  of 
character.^ 

Sec.  442.  Same  —  Defendant's  acts  of  kindness  to  de- 
ceased. —  Acts  of  kindness  on  the  part  of  the  defendant 
towards  the  deceased  may  properly  be  allowed  to  be  put  in 
evidence  as  tendino-  to  show  the  feelino-s  or  relations  sub.-istinof 
between  the  parties ;  but  where  there  has  been  no  attempt  by 
the  prosecution  to  show  that  the  accused  had  ever  been  unkind 
to  the  deceased  prior  to  the  killing,  it  is  not  error  in  the 
court  to  refuse  to  admit  cumulative  evidence  of  acts  of 
kindness  by  him.^ 

Sec.  443.  Use  of  intoxicants. — It  is  said  by  the  supreme 
court  of  Pennsylvania  in  the  case  of  Wari'en  v.  Common- 
wealth,^ that  on  the  trial  of  an  indictment  for  murder,  it  is 
not  error  to  reject  questions  as  to  whether  the  prisoner  was 
not  generally  drunk,  when  out  of  work,  whether  he  did  not 
move  more  quickly  when  drunk  than  sober,  to  be  followed 
with  proof  that  he  did  move  quickly  on  the  occasion  of  the 
killing,  and  as  to  the  effect  of  liquor  on  his  constitution  and 
brain,  when  there  was  no  proof  of  actual  intoxication,  or  that 
he  was  out  of  work  at  the  time.  Nor  Avas  it  error  to  reject 
a  question  relating  to  the  acts  and  declarations  of  the  wife, 
on  the  day  when  the  murder  was  committed  ;  they  were  not 
evidence  in  favor  of  the  prisoner,  and  were  irrelevant.^ 

1  Z^  Graft.  (Va.)  413  (1880).  «  A  witness  for  the  defence,  in  a 

2  55  Ala.  28  (1876).  tri;il  for  murder,  havini?  testified  tiiat 
^  A  like  principle  was  declared  in     the  defendant  was  a  peaceable  man, 

Hadjo  V.  Gooden,  13  Ala.  718  (1848).  was      asked      on      cross-e.xaiiiination 

"•  Murpliy    r.   People,  9    Colo.  435  whether  there  was  any  difference   in 

(1886);  s.c.  1:!  I'ac.  Hep.  578.  the  defendant's  disposition  when  under 

^  37  Pa.  St.  45  (1860)  ;   s.c.  Law.  the  influence  of  liquor  and  when  not, 

Insan.  809.  and    replied    that   he    was    peaceable 


490  ■  HOMICIDE.  [chap.  XXII. 

Sec.  444.  Somnambulistic  comlition.i — Qn  a  trial  for 
killing  a  stranger,  on  his  sudden  and  roughly  awakening  the 
defendant,  evidence  is  competent  to  show  that  the  defendant 
had  always  been  a  somnambulist,  had  lately  lost  much  sleep, 
and  had  recently  had  his  life  threatened  by  another  than  the 
deceased.^ 

Sec.  445.    Socialistic,  cominimistic,  or  anarchistic  prin- 
ciples. —  If  there  has  been  a  conspiracy,  and  a  homicide  has 
resulted  from  such  conspiracy,  it  becomes  material  to  show 
the  purposes  and  objects  of  the  conspiracy,  with  the  view  of 
determining  whether  and  in  what  respects  it  is  unlawful. 
Anarchy  is  the  absence  of  government ;  it  is  a  state  of  society 
where  there  is  no  law  or  supreme  power.     If  the  conspiracy 
had  for  its  object  the  destruction  of  the  law  and  the  govern- 
ment, and  of  the  police  and  militia  as  the  representatives  of 
law  and  government,  it  had  for  its  object  the  bringing  about 
of  practical  anarchy.     And  when  murder  has  resulted  from 
the    conspiracy,  and   the  perpetrators  are  on  trial  for  the 
crime,  whether  or  not  the  defendants  were  anarchists  may  be 
a  proper  circumstance  to  be  considered,  in  connection  with 
other  circumstances  in  the  case,  with  a  view  of  showing  what 
connection,  if  any,  they  had  with  the  conspiracy,  and  what 
were  their  purposes  in  joining  it.     So  it  would  be  putting  it 
too  broadly  to  instruct  the  jury  in  such  a  case  that  it  could 
not  be  material  in  the  case  that  tlie  defendants,  or  some  of 
them,  were  or  might  be   "socialists,   communists,   or  anar- 
chists," and  such  an  instruction  might  well  be  refused.^ 

Sec.  446.  Same  —  Acts,  threats,  and  declarations  by  con- 
federates and   co-conspirators  —  Before  the  homicide. — 

As  a  rule  the  acts,  threats,  and  declarations  of  third  persons 
cannot  be  introduced  in  evidence  against  a  defendant  on  trial 
under  an  indictment  for  homicide,  but  where  a  conspiracy 

when  he  was  intoxicated.     Held,  that  nambulism  as  a  defence  to  crime,  see 

the   question    and    answer,   taken    to-  Kerr's  "  Harris'  Before  and  at  Trial," 

gether,  did  not  injure  the  defendant,  pp.  270-282. 

Achey  V.  State,  ()4  Ind.  60  (1878).  3  gpies     v.     People      (Anarchists' 

1  See  ante,  §  218.  Case),  122  111.  1  (1887)  ;  s.c.  9  Cr.  L. 

2  Fain  v.  Commonwealth,  78  Ky.  Mag.  829  ;  3  Am.  St.  Rep.  o20  ;  6  Am. 
183  (1879);  s.c.  39  Am.  Kep.  213;  Cr.  Rep.  570 ;  12  N.  E.  Rep.  865;  17 
Law.  Insan.  772.  N.  E.  Rep.  898. 

For  an  interesting  chapter  on  sora- 


SEC.  446.]  EVIDENCE — COMPETENCE.  491 

has  been  shown  in  furtherance  of  which  the  homicide  is 
charged  to  have  been  committed,  declarations  and  threats  of 
co-conspirators  as  to  the  common  design  of  the  conspiracy, 
and  acts  committed  and  things  done  in  furtherance  thereof, 
are  admissible  in  evidence.^ 

Thus  where  A  incites  a  riot  and  takes  part  in  it,  and  the 
mob  kills  a  man,  and  A  is  put  on  trial  for  murder,  evidence 
of  cries  of  '•  Kill  him  I  "  uttered  by  other  members  of  the  mob, 
is  admissible.^ 

In  Kunde  v.  State,^  on  the  trial  of  one  of  several  persons  in- 
dicted for  murder,  the  defendant  offered  the  reproduced  testi- 
mony of  a  deceased  witness  to  show  acts  and  declarations  on 
the  part  of  K.  one  of  his  co-defendants,  occurring  shortly 
prior  to  the  homicide,  tending  to  show  malice  on  the  part 
of  K,  towards  the  deceased,  and  a  motive  to  commit  the  crime. 
The  court  held  that  it  having  been  shown  by  other  evidence 
that  K.  was  near  the  place  of  the  crime  at  the  time  it  occurred, 
and  had  equal  opportunity  with  the  defendant  to  commit  it, 
and  tliat  K.  had  furnished  two  Mexicans  each  with  a  double- 
barrelled  shot-gun,  and  that  the  Mexicans  left  K.'s  house  the 
night  before  the  homicide,  carrying  the  guns  with  them,  and 
returned  next  morning  with  one  barrel  of  each  of  the  guns 
appearing  to  have  been  recently  discharged,  that  the  rejec- 
tion of  such  evidence  was  error  warranting  a  reversal.  In 
State  v.  McCahill,'*  a  trial  for  murder,  it  appeared  that  the 
defendant  was  one  of  a  mob  of  striking  miners  which  sur- 
rounded and  entered  a  house  in  which  some  new  workmen 
had  taken  refuge,  and  fired  several  shots  in  the  direction  of  a 
chamber  in  which  the  men  were,  one  of  which  killed  the  de- 
ceased, but  there  was  no  evidence  to  show  that  the  defendant 

1  Spies     V.      People     (Anarchists'  (1887) ;    Armstead   v.  State,  22  Tex. 

Case),  122  111.  1  (1887);  s.c.  0  Cr.  L.  App.  51   (1887);    s.c.   2   S.   W.  Rep. 

Mag.  829;  3  Am.  St.  Rep.  320;  6  Am.  627  ;  Tow  v.  State,  22  Tex.  App.  175 

Cr.  Rep.  570;  12  N.  E.  Rep.  8(55;  17  (1887)  ;  s.c.  2  S.  W.  Kep.  582;  Kunde 

N.  E.  Rep.  898.     See  People  v.  Geiger,  i-.  State,  22  Tex.  App.  65  (1887)  ;  s.c. 

49  Cal.  643  (1875);  McRae  i;.  State,  3  S.  W.  Rep.  325;  Preston  v.  State,  4 

71  Ga.  96  (1883);  State  v.  McCuhill,  Tex.  App.  186  (1879). 

72  Iowa,  111  (1887)  ;  s.c.  9  Cr.  L.  Mag.  2  McRae  v.  State,  71  Ga.  96  (1883). 
37;  30  N.  ^Y.  Rep.  553 ;  State  i».  Fitz-  3  22  Tex.  App.  65  (1887);  s.c.  3 
hue,  2   Oreg.   227    (1867);    Kehoe    v.  S.  W.  Rep.  325. 

Commonwealth,  85  Pa.  St.  127  (1877)  ;  *  72  Iowa,  11  (1887)  ;  s.c.  9  Cr.  L. 

Cook    y.    State,   22    Tex.    App.     511  Mag.  37 ;  30  N.  W.  Rep.  553. 


492  HOMICIDE.  [chap.  XXII. 

fired  the  fatal  shot,  it  was  held  that  the  prosecution  might  prove 
the  history  of  the  strike,  both  before  and  after  the  acts  of 
violence,  and  also  a  conspiracy  to  forcibly  drive  out  new  men. 

But  only  those  declarations  of  each  member  of  a  conspiracy, 
however,  which  are  in  furtherance  of  the  common  design,  can 
be  introduced  in  evidence  against  the  other  members.  Dec- 
larations that  are  merely  narrative  as  to  what  has  been  done, 
or  will  be  done,  are  incompetent,  and  should  not  be  admitted, 
except  as  against  the  defendant  making  them,  or  in  whose 
presence  they  were  made.^ 

Sec.  447.  Same  —  Revolutionary  org-anizations  —  Adopt- 
ing the  writing's  of  others.  —  In  the  famous  Anarchists' 
trial  it  was  shown  that  the  "  International  Association "  in 
Chicago  was  an  illegal  organization,  engaged  in  making 
bombs  and  drilling  with  arms  for  the  unlawful  purpose  of 
attacking  the  police  force  of  the  city  in  case  the  latter  should 
assume  to  do  their  duty  in  the  preservation  of  the  public 
peace.  Its  members  were  conspirators,  and,  by  their  act  of 
conspiring  together,  they  jointly  assumed  to  themselves,  as 
a  body,  the  attribute  of  individuality,  so  far  as  regarded  the 
prosecution  of  the  common  design.  Newspapers,  conducted 
by  members  of  the  organization,  as  its  organs,  advocated  the 
purposes  of  the  conspiracy,  and  speakers  addressed  public 
meetings,  called  by  some  of  the  conspirators,  inciting  the 
people  to  resist  the  police,  and  advising  riot  and  murder. 
The  police  were  attacked,  and  several  of  them  killed.  On  a 
prosecution  of  some  of  the  conspirators  for  murder,  it  was 
held  that  the  utterances  of  these  papers  and  speakers  were 
competent  evidence  against  the  defendants,  as  showing  the 
purposes  and  intentions  of  the  conspiracy  which  they  repre- 
sented.2 

On  the  same  trial,  Johann  Most's  book  on  the  "Science  of 
Revolutionary  Warfare  "  was  admitted  in  evidence  against 
the  defendants.  This  book  is  a  treatise  upon  the  most  im- 
proved methods  of  making  bombs  and  preparing  dynamite 

I  Spies     V.      People      (Anarcliists'  -  Spies      r.     People      (Anarchists' 

Case),  122  111.  1  (1887)  ;    s.c.   9   Cr.  Case),  122    111.  1   (1887)  ;  s.c.  9   Cr. 

L.  Mag.  829;    3   Am.    St.  Rep.  .320;  L.  Mag.  829;  3    Am.    St.  Rep.   320; 

fl  Am.  Cr.  Rep.  570  ;     12    N.  E.  Rep.  0    Am.  Cr.  Rep.  570  ;    s.c.    12   N.   E. 

805  ;  17  N.  E.  Rep.  898.    See  1  Greenl.  Rep.  805  ;  17  N.  E.  Rep.  898, 
Ev.  (14th  ed.)  §  133. 


SEC.  448.]  EVIDENCE COMPETE^'CE.  493 

and  other  explosives,  and  contains  suggestions  as  to  how  to 
apply  the  results  of  modern  science  to  the  Avork  of  destruc- 
tion of  the  "  capitalistic  system,"  and  advice  to  persons  who, 
as  members  of  the  so-called  revolutionary  forces,  might  pur- 
pose to  engage  in  the  use  of  these  weapons  and  explosives. 
The  treatise  was  distributed  among  the  members  of  the  inter- 
national groups  at  their  picnics  and  meetings  through  the 
ao-ency  of  the  International  Association.  Its  circulation  was 
an  act  of  the  illegal  organization  to  which  all  the  defendants 
belonged,  and  was  one  of  the  methods  by  which  that  organiza- 
tion instructed  and  advised  its  members  to  get  ready  for  the 
murder  of  the  police  during  the  excitement  among  the  striking 
working-men,  at  the  time  existing.  Their  newspaper  organs 
commended  it  and  quoted  from  it.  Some  of  the  conspirators 
read  it  and  acted  upon  the  suggestions  contained  in  it. 
When  the  leaders  of  the  organization  thus  made  use  of  this 
treatise,  they  adopted  it  as  a  manual  of  tactics,  and  it  became 
a  book  of  their  written  advice  and  instructions  to  their  fol- 
lowers. It  was  competent  evidence  as  showing  the  purposes 
and  objects  which  they  had  in  vicAv,  and  the  methods  by 
which  they  proposed  to  accomplish  these  objects.^  As  to  the 
fact  that  some  of  these  bombs  and  cans,  like  some  whicli  had 
been  shown  to  certain  of  the  conspirators  during  their  drill, 
were  found  buried  near  one  of  the  designated  meeting  places 
where  certain  of  the  armed  men  were  assembled  on  the  night 
of  the  attack  on  the  police,  this  was  a  circumstance  proper  to 
be  considered  by  the  jury  in  determining  the  nature  and 
character  of  the  conspiracy,  and  its  connection  with  the 
events  of  the  night  of  the  killing.^ 

Sec.  448.  Acts,  threats,  and  rteclaratioiis  of  co-rtefeiulant 
—  After  homicide.  —  Acts  and  declarations  by  a  co-defendant, 
not  shown  to  be  a  co-conspirator,  committed  or  made  after 
the  time  of  the  commission  of  the  homicide,  are  not  admis- 
sible against  the  defendant,  unless  shown  to  have  taken  place 
in  his  presence.2     Thus  in  Armstead  v.  State  ^  the  defendant 

1  Spies  v.  People  (Anarchists'  (1850)  ;  Minims  v.  State,  10  Oiiio  St. 
Case),  122  111.  1  (1887);  s.c.  9  Cr.  221  (1865);  Armstead  i:  State,  22 
L.Mag.  829;  3  Am.  St.  Rep.  320;  Tex.  App.  51  (1887);  s.c.  2  S.  W. 
6  Am.  Or.  Rep.  570;    12  N.  E.   Rep.  Rep.  627. 

865;  17  N.  E.  Rep.  898.  "  22  Tex.   App.  51   (1887)  ;    s.c.  2 

2  See    Cobb   i-.   State,  27    Ga.   648     S.  W.  Rep.  627. 


494  HOMICIDE.  [chap.  xxir. 

• 

and  H.  were  jointly  indicted  for  murder.  On  the  trial  of  the 
defendant  alone,  the  state  offered  to  prove  that  after  the 
killing  H.  was  taken  by  a  deputy  sheriff  to  the  vicinity  of 
the  crime,  and  pointed  out  to  the  deputy  a  place  where  a 
cartridge  shell  was  found  which  fitted  H.'s  gun.  The  court 
held  that  the  evidence  was  not  admissible.  But  in  Minims  v. 
State, ^  wliich  was  a  trial  for  murder,  it  is  said  that  where  it 
is  shown  that  certain  property  was  in  the  possession  of  the 
deceased,  and  that,  afterwards,  part  of  the  property  was 
found  in  the  possession  of  the  prisoner,  and  the  prisoner  is 
shown  to  have  been  in  communication  with  B.,  in  whose 
premises  another  portion  of  the  property  was  found,  evidence 
of  the  conduct  and  declaration  of  B.  is  admissible  to  show 
that  the  property  was,  in  fact,  in  the  possession  or  custody  of 
B.,  leaving  it  for  the  jury  to  determine  whether  he  was  such 
custodian,  and  if  so,  whether,  under  the  proof,  he  had  been 
made  so  by  the  prisoner,  with  or  without  reference  to  any 
conspiracy  between  them.  And  it  seems  that  when  a  defend- 
ant, who  is  jointly  indicted  for  murder  with  another,  who  has 
i^leaded  guilty,  is  appealed  to  by  that  other,  who  must  know 
his  guilt,  if  guilty,  to  confess  the  crime,  and  he  simply  re- 
fuses to  confess,  but  does  not  deny  his  guilt,  the  circum- 
stances may  be  given  in  evidence  to  the  jury.^ 

Sec.  449.  Acts,  threats,  and  declarations  of  third  per- 
sons before  the  homicide.  —  It  is  a  rule  of  evidence  too  well 
established  to  admit  of  question  that,  as  a  general  thing 
mere  declarations  made  before  the  homicide  by  third  per- 
sons not  shown  to  be  co-conspirators  with  the  defendant 
are  incompetent  and  inadmissible,  yet  all  that  was  said 
and  done  by  all  persons  at  the  mortal  combat,  or  the  scene 
of  the  homicide,  is  a  part  of  the  res  gestce,  and  is,  there- 
fore, competent.^  Where  it  is  clearly  shown  that  defendant 
did  the  killing,  evidence  of  threats  by  third  persons  against 
the  deceased  is  not  admissible ;  but  where  the  prosecution 
relies  on  circumstantial  evidence,  or  the  proof  leaves  a  doubt 
whether  the  defendant  was  the  slayer,  evidence  of  threats  or 
acts  tending  to  show  malice  on  the  part  of  a  third  person  to 

1  16  Ohio, St.  221  (1865).  »  state  v.  Corcoran,  38  La.  An.  949 

2  Cobb  V.  State,  27  Ga.  648  (1850).     (188G). 


SEC.  449.] 


EVIDENCE COMPETENCE. 


495 


commit  the  homicide,  is  admissible  in  defendant's  favor  ^  un- 
less such  threats  or  ill-feelings  are  remote,  and  the  6nmity  has 
disappeared.2  But  the  name  of  such  third  persons  must  be 
shown,  and  also  the  circumstances  under  which  the  threats 
were  made  or  the  hostile  acts  committed.^  If  such  evidence 
is  introduced  for  the  purpose  of  showing  malice  or  motive  of 
another  to  commit  the  crime,  the  proof  must  be  of  something 
which  shows  positive  personal  ill-feeling,  and  not  merely  a  con- 
troversy not  liable  to  engender  enmity.*  But  if  the  homicide 
is  made  to  depend  upon  some  other  act  by  the  defendant  lead- 
in  o-  to  it,  it  may  be  shown  that  an  act  of  the  same  nature 
towards  the  deceased  was  committed  by  another  person.^  The 
defendant  may  also  show,  by  acts  and  declarations  of  third 
parties,  a  conspiracy  against  him  between  such  parties  and  the 
deceased,^  or  the  liability  of  an  attack  from  the  deceased  on  ac- 
count of  enmity  between  persons  of  different  families  or  classes.''' 


1  Morgan  v.  Commonwealth,  1-4 
Bush  (Ivy.)  10(j  (1878)  ;  Sawyers  r. 
State,  15  Lea  (Tenn.)  694  (1885)  ; 
Kunde  v.  State,  22  Tex.  App.  65 
(1886)  ;  s.c.  .3  S.  W.  Rep.  325,  over- 
ruling Holt  V.  State,  9  Tex.  App.  571 
(1881)  ;  Walker  v.  State,  6  Tex.  App. 
576  (1879)  ;  Bootlie  v.  State,  4  Tex. 
App.  202  (1879)  ;  Bowen  v.  State,  3 
Tex.  App.  617  (1878).  See  State  v. 
Johnson,  31  La.  An.  368  (1879); 
State  V.  Testerman,  68  Mo.  408 
(1878)  ;  Rufer  v.  State,  25  Ohio  St. 
464  (1874)  ;  Wright  v.  State,  43  Tex. 
170  (1875)  ;  Leonard  v.  Territory,  2 
Wash.  Tr.  381  (1885)  ;  s.c.  7  Pac.  Rep. 
872.  Compare  Banks  i\  State,  72  Ala. 
522  (1882) ;  Commonwealth  v.  Abbott, 
130  Mass.  472  (1881)  ;  State  v.  Lam- 
bert, 93  X.  C.  618  (1885). 

2  On  the  trial  of  A.  for  the  murder 
of  B.'s  wife,  evidence  of  hostile  feel- 
ings and  acts  on  B.'s  part  towards  her 
while  living  in  another  town,  on  ac- 
count of  alleged  adulterous  conduct 
on  her  part,  said  acts  being  followed 
by  a  period  of  amicable  cohabitation 
Tip  to  the  time  of  the  murder,  were 
held  inadmissible.  Commonwealth  r. 
Abbott,  130  Mass.  472  (1881). 

■     3  State  V.  Johnson,  31  La.  An.  368 
(1879). 


*  The  facts  and  details  of  a  civil 
suit  between  the  deceased  and  other 
parties  is  not  competent  evidence  on 
a  trial  for  homicide.  State  v.  Brooks, 
39  La.  An.  817  (1887)  ;  s.c.  2  So.  Rep. 
498. 

^  There  being  evidence  tending  to 
show  that  A.  and  defendant  agreed  that 
A.  should  call  deceased  out  of  church, 
and  that  defendant  should  kill  him, 
defendant  may  introduce  testimony 
tending  to  prove  that  a  certain  woman 
called  out  deceased  to  walk  home  with 
her.  Harrison  v.  State,  78  Ala.  5 
(1884). 

6  See  Simmons  v.  State,  79  Ga.  696 
(1887)  ;  s.c.  4  S.  E.  Rep.  894. 

^  Thus  it  is  said,  in  the  case  of  May- 
field  V.  State,  110  Ind.  591  (1886),  that 
when  the  accused  pleads  self-defence, 
and  there  is  evidence  tending  to  show 
a  standing  feud  between  the  families 
of  the  accused  and  the  deceased,  state- 
ments of  the  deceased's  father  made 
in  the  presence  of  the  deceased,  and 
to  which  he  listened  in  silence,  to  the 
effect  that  if  the  accused's  family  did 
not  look  after  themselves  deceased 
would  shoot  some  of  them,  are  admis- 
sible as  tending  to  establish  any  mat- 
ter in  controversy  at  the  trial,  and  not 
only  for  the  purpose  of   impeaching 


496 


HOMICIDE, 


[chap.  XXU. 


In  the  absence  of  proof  of  a  conspiracy  between  the  defend- 
ant and  third  persons  against  the  deceased,  evidence  of  threats 
or  of  enmity,  or  of  ill-feeling  by  such  third  persons  against 
the  deceased  is  inadmissible  against  the  defendant;  and  if  it 
be  admitted,  should  be  excluded,  upon  the  failure  of  the  state 
to  show  a  conspiracy.^  But  testimony  by  a  third  person  that 
he  advised  the  defendant  to  do  violence  to  the  deceased  may 
be  admissible  if  the  proof  shows  that  the  prisoner  acted  upon 
such  suggestion  ;  ^  and  declarations  of  a  third  person  so  closely 
identified  with  the  defendant  as  to  show  a  motive  connected 
with  such  person,  may  also  be  competent.^ 

Sec.  450.  Same — ^  After  the  homicide.  —  As  a  general 
rule,  declarations  or  exclamations  made  after  the  homicide  by 
third  persons  not  shown  to  be  co-conspirators  with  the  defend- 
ant against  the  deceased  are  inadmissible,  as  being  mere 
hearsay.*  But  where,  on  the  trial,  the  testimony  of  certain 
witnesses  implicates  the  defendant  in  the  homicide,  their 
declarations  to  the  contrary,  made  at  the  time  of  the  homicide 
or  afterwards,  may  be  proved  to  discredit  their  testimony.^ 
But  where  a  part  of  a  conversation  is  introduced  by  one  party 
as  res  (/estce,  the  remainder  may  be  shown  by  the  other  party .•" 


the  credibility  of  deceased's  father, 
who  had  denied  making  such  state- 
ments on  cross-examination. 

1  State  V.  Perry,  16  La.  An.  444 
(1862) ;  Rufer  v.  State,  25  Ohio  St. 
464  (1874)  ;  Wright  v.  State,  43  Te.x. 
170  (1875). 

•^  Fisiier  v.  State,  77  Ind.  42  (1881). 

3  See  Stepliens  v.  People,  19  N.  Y. 
549  (1859). 

*  Bradshaw  i-.  Commonwealth,  10 
Bush  (Ky.)  576  (1874);  State  v. 
Oliver,  .'JO  La.  An.  470  (1887)  ;  s.c.  2 
So.  Rep.  194.  See  State  v.  Sneed,  88 
Mo.  i;58  (1885)  ;  Greevfield  v.  People, 
85  N.  Y.  75  (1881)  ;  s.c.  39  Am.  Rep. 
635;  State  v.  Shuford,  69  N.  C.  486 
(1873);  Grigsby  c.  State,  4  Baxt. 
(Tcnn.)  19  (1874);  Fielder  v.  Slate, 
23  Tex.  App.  477  (1887)  ;  s.c.  59 
Am.  Rep.  777;  5  S.  W.  Hep.  145; 
Holt  V.  State,  9  Tex.  App.  571.  Com- 
pare Flanegan  i'.  State,  64  Ga.  52 
(1879)  ;  People  v.  Foley,  64  iMich.  148 


(1887)  ;  9  Cr.  L.  Mag.  345  ;  31  N.  ^V. 
Rep.  94. 

Evidence  of  threats  of  a  crowd  to 
lyncli  the  defendant  are  inadmissible 
on  liis  trial.  State  v.  Sneed,  88  Mo. 
138  (1885). 

5  Smith  V.  State,  9  Ala.  990  (1846)  ; 
Mixon  V.  State.  55  Miss.  525  (1878). 

It  is  said  in  Mixon  r.  State,  55 
Miss.  525  (1878),  tliat  where,  on  a 
trial  for  murder,  two  witnesses  liad 
testified  that  tliey  had  selected  the 
accused  and  several  persons  and  iden- 
tified him  as  the  one  they  saw  kill 
the  deceased,  it  was  error  to  reject 
evidence  offered  by  him  to  show  wiiat 
were  the  words  and  acts  on  such  oc- 
casion, and  that  there  was  in  fact  no 
such  identification,  altliough  he  had 
not  tliereon  examined  the  two  wit- 
nesses so  testifying  for  the  state. 

•^  In  the  case  of  People  r.  Driscoll, 
107  N.  Y.  414  (1887)  ;  s.c  10  Cr.  L. 
Mag.  244  ;  14  N.  E.  Rep.  305,  a  wit- 


SEC.  451.]  EVIDENCE COMrETENCE.  497 

While  actions  of  the  parties  subsequent  to  the  homicide  are 
usually  incompetent  against  the  defendant,  yet  where  the 
evidence  leaves  a  doubt  whether  the  defendant  was  the 
slayer,  actions  by  the  other  party  immediately  after  the  kill- 
ing, showing  conclusively  that  they  could  not  have  killed 
the  deceased  in  the  manner  in  which  it  was  done,  may  be 
admissible.^ 

Where  a  homicide  was  committed  in  the  dark,  in  the  midst 
of  a  crowd,  and  there  is  a  question  whether  a  wound  in  the 
back,  from  which  the  death  may  have  resulted,  was  made  by 
the  prisoner  or  another,  a  declaration  made  by  a  bystander 
immediately  after  the  rencounter,  to  the  effect  that  he,  the 
bystander,  cut  the  accused  in  the  back  with  a  knife,  when 
the  accused  had  no  such  cut  in  the  back,  but  deceased  had, 
is  admissible  for  all  purposes  as  part  of  the  res  gestce ;  and  a 
charge  of  the  court  confining  such  evidence  to  the  single 
object  of  impeaching  the  testimony  of  the  bystander  is  error, 
for  which  a  new  trial  should  be  granted.^ 

A  letter  written  by  another  than  the  defendant  to  a  third 
person,  containing  expressions  possibly  capable  of  being  con- 
strued as  a  confession  that  the  writer  committed  the  murder, 
is  incompetent  as  evidence  for  the  prisoner.'^ 

Sec.  451.    Same  —  Cries  or  exclamations  of  l)ystander.s. 

—  The  cries  or  exclamations  of  bystanders,  who  are  in  no 
way  acting  in  concert  with  either  of  the  parties  to  a  homicide, 
constitute  no  part  of  the  res  geata'.  Thus  in  Bradshaw  v. 
Commonwealth,'*  where  B.  Avas  accused  of  shooting  P.  and 

ness  had  testified  to  liearing  one  M.  up  his  pistol  to  an  officer;  that  it  was 

state  in  a  conversation,  shortly  after  loaded,  and  the  barrel  was  cold.     The 

the  killing,  tliat  he  did  not  shoot  de-  court    repeated    the    testimony,    and 

ceased;   that   M.,  on   the  stand,  testi-  asked    the  witness  if   that  was  right, 

fied  he  did  not  discharge  a  pistol  that  lie  answered  "  Yes,"  and  the  defend- 

night.      Defendant    had   shown    that  ant  asked  to  have  the  answer  stricken 

ileceased  had  cliarged  ^I.  in  his  pres-  out.     Held,  that  it   was   properly  de- 

ence  with  killing  lier,  and   the  decla-  nied.      People  v.  DriscoU,  107   N.  Y. 

ration  of    M.  denying  it  was  made  at  414  (1887)  ;  s.c.  10  Cr.  L.  Mag.  244; 

tliat    time.      The    court    held  that    it  14  N.  E.  Rep.  305. 
was    properly  admitted   as  a  part  of  -  Flanegan    v.   State,    64    Ga.    52 

the    conversation    introduced    by    de-  (1879). 
fendant.                                            "  3  Greenfield  v.  People,  85  N.  Y.  75 

1  In   a  trial  for  murder  a  witness  (1881);  p.c.  o9  Am.  Rep.  OOG. 
had  testified,  without  objection,  that  *  10  Bush  (Ky.)  57G  (1874). 

one  M.  had,  after  the  homicide,  given 


498  HOMICIDE.  [chap.  XXII. 

then  throwing  him  from  a  moving  train,  which  passed  over 
P.'s  body,  and  bystanders  exclaimed,  "  B.  has  shot  P.,"  these 
exchimations  of  the  bystanders  were  he  hi  inadmissible  in  evi- 
dence. In  Felder  v.  State,^  when  a  person  introduced  as  a 
witness  arrived  at  the  place  where  a  homicide  had  been  com- 
mitted, a  person  in  the  crowd  pointed  to  the  defendant  and  said, 
"  There  is  the  man  that  did  the  shooting."  It  did  not  clearly 
appear  that  the  defendant  knew  that  he  was  tlie  man  referred 
to,  although  he  was  within  healing  of  the  remark,  and  the 
court  held  that  the  evidence  of  this  exclamation  was  inadmis- 
sible on  the  defendant's  trial  for  murder. 

Sec.  452.  Same  —  Declarations  made  in  presence  of 
accused.  —  Declarations  made  by  third  persons  in  the  pres- 
ence of  the  accused,  respecting  the  matter  in  question,  are 
ordinarily  evidence  against  him,  yet  this  principle  does  not 
apply  to  declarations  which  called  for  no  response  or  dis- 
claimer by  him.  Thus  where  in  the  trial  of  an  indictment 
for  murder  it  appeared  that  the  father  of  the  defendant 
remarked  in  his  hearing  of  the  murder  of  one  M.,  "  I  said  M. 
should  go  dead;  and  now  he  is  dead,"  the  declaration  was 
held  to  be  inadmissible  in  evidence  against  the  son.  In  State 
V.  Shuford,^  it  is  said  that  on  the  trial  of  the  mother  for  the 
murder  of  her  infant  child,  a  witness  shall  not  be  permitted 
to  relate  a  statement  made  by  the  mother  of  the  prisoner,  and 
in  her  presence,  that  the  prisoner  had  a  child  this  way  before 
and  put  it  away,  to  which  the  prisoner  made  no  reply,  and 
the  reception  of  such  evidence  entitles  the  prisoner  to  a  new 
trial. 

Sec.  453.  Same  —  Declarations  made  out  of  presence  of 
accused.  —  Declarations  made  by  a  third  party  out  of  the  pres- 
ence of  the  accused  cannot  be  introduced  in  evidence  against 
the  latter ;  particularly  is  this  the  case  where  it  is  not  shown 
that  such  declarations  were  brought  to  the  knowledge  of  the 
accused,  and  in  such  a  manner  as  to  call  for  a  denial.  Thus 
on  the  trial  of  an  indictment  for  murder  l)y  burning  a  house 
containing  two  children,  three  witnesses  testified  that  they 
bad  identified  certain  clothing  left  in  the  house  and  claimed 

1  23  Tex.  App.  477  (1887)  ;  s.c.  50  ''  G9  N.  C.  480  (1873). 

Am.  Eep.  777  ;  5  S.  W.  Uep.  145. 


SEC.  454.] 


EVIDENCE  —  COMPETENCE. 


499 


by  the  accused.  The  court  held  that  the  adnussion  of  testi- 
mouy  to  the  effect  tliat  these  three  and  another  person  had, 
when  the  accused  was  not  present,  examined  tlie  clothes,  and 
declared  them  to  be  the  clothes  so  left,  was  ground  for  setting 
aside  the  conviction.^ 

Sec  454.  Previous  relations  existiii.sf  between  deceased 
and  defendant — Previous  quarrellinjj  or  ill-feeling  — 
Proof  of  by  prosecution.  —  A  former  difhculty  or  quarrel 
between  the  deceased  and  the  defendant  is  admissible  against 
the  latter,  as  tending  to  show  malice  ;  ^  and  the  competency 
of  such  evidence  is  not  affected  by  the  length  of  time  before 
the  homicide  that  such  quarrel  or  ill-feeling  is  shown  to  have 
occurred  or  existed,  but  the  remoteness  goes  entirel}-  to  its 
weight.^  But  it  has  been  said  that  evidence  of  previous  quar- 
rels, or  of  prior  particular  acts,  to  be  admissible  against  the 
prisoner,  must  not  be  of  a  separate  and  independent  act,  but 


^  Grigsby  v.  State,  4  Baxt.  (Tenn.) 
19  (1874). 

2  Finch  V.  State,  81  Ala. 41  (1886); 
s.c.  1  So.  Rep.  565;  Garrett  v.  State, 
76  Ala.  18  (1884)  ;  Commander  v. 
State,  60  Ala.  1  (1877)  ;  Pound  v. 
State,  4.3  Ga.  88  (1871);  Choice  v. 
State,  31  Ga.  424  (1860)  ;  s.c.  Law. 
Insan.  5-38 ;  Koerner  r.  State,  98  Ind. 
7  (1884)  ;  Rinns  v.  State,  66  Ind.  428 
(1879)  ;  Slate  v.  Periqo,  70  Iowa,  657 
(1886);  s.c.  8  Cr.  L.  Mag.  156;  28 
N.  W.  Rep.  452;  State  v.  Cole,  63 
Iowa,  695  (1883)  ;  Williams  v.  State, 
64  Md.  384  (1885);  s.c.  5  Am.  Cr. 
Rep.  512;  1  Atl.  Rep.  887;  Dillin  v. 
People,  8  Mich.  357  (1860)  ;  People  v. 
Lnons,  110  N.  Y.  618  (1888)  ;  s.c.  10 
Cr.  L.  Mag.  690;  17  N.  E.  Rep.  391 ; 
Sayres  r.  Commonwealth,  88  Pa.  St. 
291  (1879);  Boyle  v.  State,  61  Wis. 
440  (1884)  ;  s.c.  21  N.  W.  Rep.  289. 
See  People  i'.  Stonecifer,  6  Cal.  405 
(1856). 

On  the  trial  of  a  man  for  murder- 
ing his  wife,  evidcaice  of  ill-treatment 
and  want  of  affection  is  admissible. 
State  V.  Cole,  63  Iowa,  695  (1883); 
s.c.  17  N.  W.  Rep.  183;  Boyle  v. 
State,  61  Wis.  440  (1884);  s.c.  21 
N.  W.  Rep.   289.     And  it  has   been 


said  that  on  the  trial  of  B.  for  murder 
of  his  wife,  parol  evidence  that  a  suit 
for  divorce  had  been  pending  wherein 
she  was  plaintiff  and  lie  defendant,  is 
admissible.  Binns  r.  State,  06  Ind. 
428  (1879). 

A  remark  addressed  by  a  wife  to 
her  husband,  the  defendant  in  a  mur- 
der trial,  five  hours  prior  to  the 
killing,  and  in  the  presence  of  tlie 
deceased,  "  Mr.  G.,  don't  you  and  Mr. 
F.  (deceased)  have  any  difficulty. 
Mr.  G.,  you  take  me  home,"  held 
admissible  to  prove  the  facts  of  a 
prior  difficulty.  Garrett  v.  State,  76 
Ala.  18  (1884).  The  defendant's  con- 
fession concerning  a  previous  difficulty 
with  the  deceased  is  admissible  on 
the  question  of  malice  and  motive. 
Finch  r.  State,  81  Ala.  41  (1886); 
s.c.  1  So.  Rep.  565. 

3  See  Koerner  i:  State,  98  Ind.  7 
(1884) ;  State  v.  Perigo,  70  Iowa,  657 
(1886)  ;  s.c.  8  Cr.  L.  Mag.  156  ;  28 
N.  VV.  Rep.  457 ;  Dillin  i-.  People,  8 
Miidi.  .357  (I860)  ;  People  v.  Lyons, 
110  N.  Y.  618  (1888)  ;  s.c.  10  Cr.  L. 
Mag.  690  ;  17  N.  E.  Rep.  .391 ;  Sayres 
V.  Conmionwealth,  88  Pa.  St.  291 
(1879). 


500  HOMICIDE.  [CIIAP.  xxir. 

there  must  be  some  link  of  association  Avliich  draws  together 
the  preceding  and  subsequent  acts,  and  sheds  light  upon  the 
motive  of  the  parties,  to  render  such  evidence  admissible  ; 
and  the  state  of  feeling,  generally,  between  them  may  be 
admitted  to  illustrate  their  conduct  at  the  time.^ 

Evidence  of  a  quarrel  between  the  defendant  and  the 
deceased,  three  or  four  weeks  before  the  homicide,  is  admissi- 
ble as  showing  the  commencement  of  the  history  of  the  rela- 
tions between  the  parties.^  Thus  on  the  trial  of  a  person  for 
tlie  murder  of  his  wife,  it  being  shown  that  he  had  domestic 
troubles  for  many  years,  evidence  is  admissible  of  a  quarrel 
occurring  two  years''^  or  even  for  years ^  before  the  killing,  to 
show  malice.  And  where  a  sea  captain  is  charged  with  mur- 
dering one  of  his  seamen  by  inhumanly  beating  him,  evidence 
of  maltreatment  on  preceding  days  is  admissible  on  the  ques- 
tion of  ill-will  or  malice.^ 

It  is  said  in  the  case  of  State  v.  Perigo^  that  on  the  trial 
of  an  indictment  for  murder,  evidence  of  a  quarrel  between 
the  defendant  and  the  deceased  about  a  year  before  the  kill- 
ing, is  competent  to  prove  ill-will  on  tlie  part  of  the  defendant 
towards  the  deceased.  And  in  Dillin  v.  People,'^  where  it 
appeared  that  the  deceased  had  been  absent  from  the  neigh- 
borhood of  the  prisoner  some  eight  or  ten  months  preceding 
the  alleged  offence,  it  was  held  competent  for  the  prosecution 
to  show  the  state  of  feeling  between  the  prisoner  and  the 
deceased  immediately  preceding  such  absence. 

It  is  said  by  the  supreme  court  of  Alabama  in  the  case  of 
Commander  v.  State,^  that  the  fact  of  a  litigation  between  the 
deceased  and  the  prisoner,  who  were  connected  by  marriage, 

1  Pound  r.  State,  43  Ga.  88  (1871).  show   express  malice,  was  strictly  in 

-  People   V.  Lyons,  110  N.  Y.  G18  rebuttal,  and  the  decision  of  tlie  court 

(1888);  s.c.  10  Cr.    L.  Mag.  690;  17  below  admitting  it   would  not  be  re- 

N.  E.  Rep.  301.  viewed  in  tlie  supreme  court. 

In    Clioice    v.    State,    31     Ga.    424  ^  Sayres  v.  Coniuionwealtli,  88  Pa. 

(1860)  ;  s.c.  Law.  Insan.  538,  upon  a  St.  291  (1879). 

trial   for    murder,    the    state,    having  ^  Koerner  !•.  State,  98  Ind.  7  (1884). 

proved    the    homicide,    rested.      The  ^  Williams    v.    State,   64    Md.   384 

defendant  set  up  insanity,  and  intro-  (188'));    s.c.  T)  Am.  Cr.  Rep.  512;   1 

duced  evidence  to  prove  it.    The  court  Atl.  Rep.  887. 

held  that  evidence  on  the  part  of  the  «  70   Iowa,  6.')7   (1886)  ;   s.c.  8  Cr. 

state  of   a  difficulty  between  the  de-  L.  Mag.  156;  28  N.  W.  Hep.  457. 

fendant  and  the  deceased,  on  the  night  '  8  Mich.  357  (1860). 

before  the  homicide,  which  tended  to  *  60  Ala.  1  (1877). 


SEC.  456.]  EVIDENCE  —  COMPETENCE.  501 

or  of  family  litigation  in  which  the  prisoner  felt  an  interest, 
connected  with  his  declaration  that  he  would  kill  any  one 
who  sued  him  under  like  circumstances,  is  admissible  in  evi- 
dence for  the  prosecution  as  bearing  on  the  question  of  the 
relations  subsisting  between  him  and  the  deceased,  and  the 
state  of  his  feelings  towards  the  deceased ;  but  evidence 
touchinof  the  merits  of  such  litigation  not  to  be  admissible 
for  him  in  rebuttal. 

Sec.  455.  Same  —  Where  two  jointly  indicted. — Where 
two  or  more  persons  are  jointly  indicted  for  the  same  homi- 
cide, proof  of  a  previous  difficulty  or  of  ill-feeling  between 
one  of  them  and  the  deceased  can  be  admitted  only  as  evidence 
of  malice  and  motive  in  him  to  commit  the  homicide,^  and 
the  confession  of  such  co-defendant  of  a  previous  difficulty 
with  the  deceased  is  admissible  against  him  to  prove  malice 
and  motive  for  the  homicide,^  and  when  such  confession  is 
admitted  in  evidence  against  the  party  making  it,  the  other 
co-defendant  cannot  object  to  such  admission  as  prejudicial  to 
him.^ 

Sec.  456.  Same  —  Proof  of  by  defence. — Where  the  evi- 
dence leaves  a  doubt  whether  the  homicide  was  committed 
with  malice,  or  whether  the  defendant  was  the  aggressor,  and 
where  the  defendant  pleads  provocation  or  self-defence,  he 
may  adduce  evidence  of  previous  quarrels  or  difficulties  with 
the  deceased,  or  of  ill-feeling  by  the  deceased  toward  him 
tending  to  show  the  deceased  to  have  been  in  fault  in  bringing 
on  or  maintaining  the  fatal  encounter,^  unless  such  a  quarrel 

1  Finch  r.  State,  81  Ala.  41  (188(>);  v.  Cooper,  32  La.  An.  1084  (1880); 
s.c.  1  Si).  Kep.  605.  State  v.  Johnson,  30  La.  An.  pt.  II. 

2  Garrctti;.  State,  76  Ala.  18  (1884)  ;  921  (1878)  ;  Wellar  v.  People,  30  Mich. 
Finch  V.  State,  81  Ala.  41  ri880)  ;  s.c.  1(5  (1874);  s.c.  1  Am.  Cr.  Kep.  276; 
1  So.  Rep.  565.                       ~  Nelson   v.   State,  (il   Miss.  212  (1883); 

3  See  Jordan  v.  State,  81  Ala.  20  s.c.  34  Am.  Rep.  444  ;  Spivey  y.  State, 
(1886)  ;  s.c.  1  So.  Rep.  577  ;  Stewart  58  Miss.  858  (1881) ;  State  v.  Grayor, 
r.  State,  78  Ala.  436  (1885)  ;  Prior  v.  89  Mo. -600  (1886)  ;  s.c.  1  S.  W.  Rep. 
State,  77  Ala.  56  (1884);  Tidwell  v.  365;  McMeen  i:  Commonwealth,  114 
State,  70  Ala.  33  (1881);  People  v.  Pa.  St.  300  (1886);  Haile  v.  State,  1 
Smith,  26  Cal.  665  (1864);  Coxwell  Swan.  (Tenn.)  248  (1851);  RusselU-. 
V.  State,  66  Ga.  309  (1881)  ;  McGinnis  State,  11  Tex.  App.  288  (1882)  ;  Mar- 
V.  State,  31  Ga.  236  (1860)  ;  Haynes  nock  c.  State,  7  Tex.  App.  269  (1880). 
V.  State,  17  Ga.  465  (1855)  ;  DeForest  Gn  the  trial  of  an  indictment  for 
J'.  State,  21  Ind.  23  (1863)  ;  State  v.  murder,  the  state  introduced  in  evi- 
Moelchen,  53  Iowa,  310  (1880)  ;  State  dence   declarations   made  by  one   of 


602  HOMICIDE.  [chap.  XXII. 

was  ended  by  a  reconciliation,  and  no  ill-feeling  is  sliown  to 
have  existed  afterwards.^ 

Tlie  length  of  time  before  the  killhig  that  such  quarrel 
occurred  or  such  ill-feeling  existed  is  immaterial,  its  remote- 
ness going  to  its  weight  and  not  to  its  competency.^ 

On  a  trial  for  murder,  the  accused,  after  proving  that  the 
deceased  had  threatened  his  life,  should  not  be  allowed  to 
prove  that  they  had  a  fight  the  day  before  the  killing,  for  the 
purpose  of  showing  to  the  jury  the  state  of  mind  of  the  de- 
ceased towards  him,  and  the  apprehensions  he  had  that  his  life 
was  exposed,  and  that  the  threats  against  it  would  be  carried 
into  execution.^  And  evidence  of  a  fight  between  the  de- 
ceased and  the  defendant,  six  hours  before  the  homicide,  is 
not  admissible  in  favor  of  the  defendant  either  as  part  of  the 
res  gestce,  or  to  show  a  provocation  for  the  murder.* 

Sec.  457.   Same  —  Showing'  business  and  social  relations. 

—  Where  it  appears  that  the  homicide  may  have  been  com- 
mitted in  order  to  enable  the  slayer  to  possess  himself  of 
property  belonging  to  the  deceased,^  or  to  obtain  or  destroy 
evidence  of  indebtedness  from  himself  to  the  deceased,^  it  is 
competent  to  prove  the  business  and  social  relations  existing 
between  the  defendant  and  the  deceased  for  a  reasonable  time 
before  the  commission  of  the  homicide.  Thus  it  is  said  by 
the  supreme  court  of  Nebraska  in  the  case  of  Clough  v.  State,''' 
that  where  the  theory  of  the  prosecution  is  that  the  homicide 
was  committed  by  the  prisoner  to  enable  him  to  possess  him- 

the  defendants,  half   an  liour  before  i  Tidwellr.  State,  70  Ala.  .'W  (1881). 

the  killing,  in  which  he  threatened  to  -  DeForest    v.    State,    21     Ind.    28 

"put  a  light  hole"  through  any  one  (18()o)  ;  Russell  v.  State,  11  Tex.  App. 

who  should  strike  T.     Deceased  sub-  288  (1882).    Compare  People  r.  Smith, 

sequently  knocked  down  T.,  and,  after  26  Cal.  665  (1864)  ;  State  i'.  Cooper, 

being  remonstrated  with  by   said  de-  32    La.    An.    1084    (1880);    State    v. 

fendant,  was  shot  and  killed  by  him.  Grayor,    89    Mo.  600    (1886)  ;    s.c.    1 

Tlie  court  held  that  the  occurrence  in  S.  W.  Rep.  .365. 

which    deceased,    defendants,  and    T.  ■''  State  v.  Cooper,  32  La.  An.  1084 

were  involved  at  the  ])lace  of  the  honii-  (1880). 

cide,  on  the  same   evening,  might  be  ■*  People    v.    Smith,    26    Cal.    665 

regarded  as  constituting  a  single  trans-  (18(54). 

action ;    and    that    the    evidence   was  ^  Clough    v.     State,    7     Neb.    320 

admissible  to  show  defendant's  motive  (1878). 

and    purpose    in    remonstrating    with  '■  Webster    i\    Commonwealth,    59 

deceased.     Jordan    r.    State,  81    Ala.  Mass.  (5  Ciish.)  .186  (1850). 

20  (1887)  ;  s.c.  1  So.  Rep.  577.  '  7  Neb.  320  (1878). 


SEC.  458.]  EVIDENCE  —  COMPETENCE.  503 

self  of  his  brother's  property,  the  business  and  social  relations 
subsisting  between  them,  not  only  just  about  the  tiriie  Qf  the 
murder,  but  also  for  a  reasonable  time  before,  are  competent 
evidence.  Also  that  where  it  is  shown  that  the  deceased 
was  possessed,  just  before  his  death,  of  a  considerable  sum  of 
money,  it  is  competent  for  the  prosecution  to  })rove  payments 
of  money  by  the  prisoner  just  before,  as  well  as  after,  the 
homicide  was  committed. 

Sec.  458.  Proof  as  to  weapon.  —  Where  it  is  shown  that 
the  injuries,  or  part  of  them,  causing  the  death  of  the  de- 
ceased could  have  been  inflicted  with  weapons  or  instruments 
of  a  certain  kind,  evidence  that  the  defendant  had  such  instru- 
ments in  his  possession  before  the  killing  is  admissible.^  It 
is  also  competent  to  show  that  the  size  of  the  shot  or  missile, 
and  the  range  of  the  gun,  as  proved  on  the  trial,  corresponded 
with  the  circumstances  of  the  killing  in  those  respects,^  and 
it  is  competent  for  a  witness  to  say  whether  a  weapon,  which 
he  has  heard  described,  but  has  never  before  seen,  corresponds 
with  the  description  given.^ 

Thus  where  upon  the  trial  of  an  indictment  for  manslaugh- 
ter, the  evidence  tended  to  show  that  the  deceased  was  killed 
by  being  cut  with  a  knife,  the  prosecution  may  introduce  evi- 
dence that  the  defendant  had  borrowed  a  knife  a  short  time 
before  the  homicide,  as  an  act  of  preparation  for  an  ex- 
pected dii!iculty  ;  and  evidence  as  to  the  descriptiou  of  the 
knife  was  relevant.*  The  size  of  the  shot^  and  the  range  of 
the  gun  ^  may  be  shown  where  those  questions  have  a  bearing 
upon  the  case. 

1  Finch  V.  State,  81  Ala.  41  (1880)  ;  the  range  of  the  gun  used  in  shooting 

s.c.   1  So.  Rep.  565;   State   v.  Rains-  and  the  size  of  the  huckshot  was  with 

harger,  71   Iowa,  746  (1887);  s.c.  31  which  it  was  loaded,  evidence  is  ad- 

N.  W.  Rep.  865.  missible  to  show  that  a  party,  after 

'-  Mose  v.  State,  36  Ala.  211  (1860)  ;  the  murder,  found  a  buckshot  of  said 

Dean    v.   Commonwealth,    32    Gratt.  size  in  a  tree  within  said  range.    Mose 

(Va.)    912    (1870).      See    Dukes    v.  r.  State,  36  Ala.  211  (1860). 

State,  11  Ind.  557  (1858).  ^  On  a  trial  for  murder  by  shooting, 

3  Cobb  V.  State,  27  Ga.  648  (1859).  evidence  in  relation  to  the  examina- 

*  Finch  V.  State,  81  Ala.  41  (1886)  ;  tion  of  guns  in  the  neighborhood,  to 

s.c.  1  So.  Rep.  565.  ascertain  whether  any  of  them  carried 

s  Thus,  where  it  is  shown,  by  tlie  a  ball  of  the  size  of  the  one  found  in 
confessions  of  a  defendant  on  trial  the  body  of  tlie  murdered  man,  was 
for  murder  by  shooting,  and  the  dying  held  admissible  in  Dean  v.  Common- 
declarations   of    the    deceased,   what  wealth,  32  Gratt.  (Va.)  912  (1879). 


504  HOMICIDE.  [chap.  XXII. 

Where  the  charge  against  the  defendant  is  the  making  of 
the  \yeapon  or  instrument  with  which  the  killing  was  done, 
in  furtherance  of  a  conspiracy  of  which  he  was  a  member,  it 
is  proper  to  introduce  in  evidence  other  weapons  or  instru- 
ments made  by  him  of  the  same  kind,  in  order  that  the  jury 
may  compare  them  with  the  one  with  which  the  killing  was 
done,  and  so  bs  aided  in  determining  whether  the  defendant 
was  its  maker.  Thus  in  the  Anarchists'  Case  ^  the  policeman  for 
whose  murder  the  defendants  were  indicted,  was  killed  by  the 
explosion  of  a  bomb  thrown  in  the  midst  of  the  police  force. 
On  the  trial  the  court  allowed  to  be  given  in  evidence,  bombs 
and  cans  containing  dynamite,  and  prepared  with  contriv- 
ances for  exploding  it,  which  had  been  found  under  sidewalks 
and  buried  in  the  ground  at  certain  points  in  the  city,  placed 
there  by  certain  of  the  conspirators.  As  specimens  of  the 
kind  of  weapons  which  Lingg,  the  one  of  the  conspirators 
who  had  charge  of  their  manufacture,  and  his  associates,  were 
preparing,  and  as  showing  the  malice  and  evil  heart  which  the 
intended  use  of  such  weapons  indicated,  the  introduction  of 
bombs  made  by  him  was  not  improper.  The  jury  had  a  right 
to  see  them  and  compare  their  structure  with  the  description 
of  the  bomb  that  killed  the  policeman,  with  a  view  of  deter- 
mining whether  Lingg,  as  was  charged,  was  the  maker  of  the 
latter  or  not. 

But  it  is  improper  to  allow  a  witness  to  experiment  with 
the  weapon  with  which  the  homicide  was  charged  to  have 
been  committed,  in  order  to  determine  the  manner  of  its  work- 
ing. Thus  in  Polin  v.  State  ^  the  supreme  court  of  Nebraska 
say  that  the  sheriff  could  not  be  allowed  to  discharge  the 
revolver  used  by  the  prisoner  to  see  whether  it  would  go  off 
at  half-cock,  as  he  claimed,  and  thus  furnish  evidence  to  sus- 
tain the  theory  of  the  defence  that  the  killing  was  accidental, 
the  revolver  having  gone  off,  as  it  was  claimed,  at  half-cock.^ 

1  Spies  V.  reoplc,  122  111.  1  (1887)  ;  tlie  judge  had  no  authority  to  require 
B.C.  9  Cr.  L.  Mag-.  829;  o  Am.  St.  Kep.  the  sheriff  to  make  the  experiment, 
320;  6  Am.  Cr.  Hep.  570;  12  N.  E.  and  in  the  second  place  the  possibility 
Rep.  8fi5 ;  17  N.  E.  Hep.  808.  of  a  discharge  at  half-cock  could  have 

2  14  Neb.  540  (1883)  ;  s.c.  10  N.  W.  been  shown  just  as  well  with  the  cham- 
Rep.  808.  hers  of  the  revolver  empty  as  by  an 

^  Tlie  court  say  :  "  In  the  first  place     actual  discharge." 


SEC.  460. J  EVIDENCE  —  COMPETENCE.  505 

Sec.  459.  Comparison  of  liandu  ritinj?. —  Where  the 
identity  of  the  prisoner  with  the  shiyer  is  in  dispute,  it  is 
competent  for  the  jury  to  compare  handwriting  hy  the  pris- 
oner with  signatures  or  other  writing  shown  to  have  been 
written  or  signed  by  the  shiyer;  or  they  may  consider  sig- 
natures of  different  names,  where  it  is  chiimed  tliat  all  were 
written  by  the  defendant,  in  order  to  determine  if  such  be  the 
case,^  and  a  writing  may  be  part  introduced  by  one  side,  and 
the  remainder  by  the  other.^ 

Sec    460.     Comparison    of    tracks    and    footprints. — 

Where  the  evidence  leaves  a  doubt  whether  the  defendant  com- 
nfitted  the  homicide,  it  is  always  competent  to  compare  tracks 
or  footprints  shown  to  have  been  made  by  him  with  tracks  or 
footprints  found  at  or  near  the  scene  of  the  homicide,  and 
apparently  connected  therewith  ;3  and  so  also  it  is  competent 
to  prove  that  the  feet  or  shoes  of  his  horse,  or  other  animal 
of  like  kind,  fitted  corresponding  tracks  found  at  or  near  the 
place  of  the  homicide.*  And  it  is  thought  that  where  such 
measurements  are  not  made  until  five  days  or  even  two  weeks 
after  the  killing,  this  fact  will  not  render  the  evidence  incom- 
petent.''' 

In  Bouldin  v.  State,^  in  a  trial  of  B.  for  an  assassination,  the 
principal  inculpatory  proof  was  that  B.'s  shoe  fitted  a  certain 
track  and  that  fresh  horse-tracks  led  towards  his  house  from 
the  vicinity  of  the  crime,  which  tracks,  according  to   the 

1    See   Crist   v.   State,  21   Ala.   137  they  were.     He  commenced  by  stat- 

(1852).  i'lg:  "  I  measured  from  the  outside  of 

'-  Early  i-.  State,  9  Tex.  App.  476  the  flower-bed  where  the  man  stood," 

(1881).  and  then  upon  objection  being  made, 

3  People  r.  McCurdy,  08  Cal.  57G  said:    "  From    where    the    footprints 

(1886)  ;  Dillin  v.  People,  8  Mich.  357  were  up   to   the  window,"  &c.      The 

(1860)  ;  Murphy  v.  People,  63  N.  Y.  prisoner's  counsel  moved  to  strikeout 

590  (1876)  ;  Stokes  v.  State,  5  Baxt.  the  answer,  on  the  ground  that  there 

(Tenn.)  619  (1875)  ;  s.c.  .30  Am.  Rep.  was  no  proof  that  the  witness  knew 

72;  Bouldin  y.  State,  8  Tex.  App.  332  where  the  man    stood.     The   motion 

(1880)  ;  Walker  i-.  State,  7  Tex.  App.  was   denied.     Held,  no   error;    as,  if 

245  (1879)  ;  ,s.c.  32  Am.  Pep.  595.  the  fore  part  of  the  answer  was  objec- 

In  Murphy  r.  People,  63  N.  Y.  590  tionable,  it  was  immediately  corrected. 

(1876),  the  imprint  of  a  footstep  was  *  Campbell    v.    State,   23    Ala.   44 

found  on  the  night  of  the  murder  on  (1853)  ;  Bouldin  i-.  State,  8  Tex.  App. 

a  flower-bed  near  and  under  the  win-  322  (1880). 

dow  through  wliich  the  shot  was  fired.  ^  gee  People  v.  McCurdy,  68  Cal. 

A  witness,  who  lind  made  certain  meas-  576  (1886)  ;  s.c.  10  Pac.  Rep.  207. 

ureraents,  was   asked   to   state   what  ^  8  Te?(.  App.  332  (1880). 


50G  HOMICIDE.  [chap.  XXII. 

theory  of  the  prosecution,  were  those  of  B.  and  his  horse. 
The  court  held  that  B.  might  prove  his  willingness  to  put  his 
foot  and  shoe  in  the  track,  and  his  request  that  the  horse- 
tracks  might  be  measured  and  compared  with  the  feet  and 
tracks  of  his  horse. 

Sec.  461.  Same  —  Compelling  defendant  to  make  foot- 
print. —  No  principle  of  law  is  better  settled  than  that  a 
person  sliall  not  be  compelled  to  be  a  witness,  or  compelled 
to  testify  against  himself.  This  is  a  right  guaranteed  by  the 
constitution  in  most  if  not  all  the  states.^ 

It  has  been  held  that  the  requiring  of  a  defendant  to  make 
an  impression  with  his  foot  or  shoe  in  a  soft  substance,  in 
order  that  such  impression  may  be  compared  with  a  footprint 
or  track  which  is  apparently  connected  with  the  homicide,  is 
not  compelling  him  '•'■  to  give  evidence  against  himself,"  pro- 
vided against  by  constitutional  provision.^  But  the  better 
opinion  is  thought  to  be  to  the  contrary.  Thus  in  Stokes  v. 
State,^  it  is  held  that  the  action  of  a  prosecuting  officer  in 
bringing  into  court  a  vessel  filled  with  mud,  and  requesting 
defendant  to  put  his  foot  in  it  is  reversible  error,  although 
the  court  instructed  the  defendant  that  his  compliance  was 
optional  with  himself,  and  he  refused  to  do  as  requested. 
The  court  say :  "  Because  of  this  action  of  the  attorney- 
general,  and  the  assent  of  the  court  thereto,  this  cause  is 
reversed  and  remanded.  In  the  presence  of  the  jury  the 
prisoner  is  asked  to  make  evidence  against  himself.  The 
court  should  not  have  permitted  the  pan  of  mud  to  have  been 
brought  before  the  jury  and  the  defendant  asked  to  put  his 
foot  in  it.  We  are  satisfied  the  jury  was  improperly  influenced 
thereby.  And  it  is  no  sufficient  answer  that  the  judge  after- 
ward told  the  jury,  that  the  refusal  to  put  his  foot  in  the 
nuid  was  not  to  be  taken  as  evidence  against  him.  The 
bringing  in  of  the  pan  of  mud  and  the  request  of  the  attor- 


1  See  State  v.  Jacobs,  5  Jones  182.  Tlie  doctrine  of  tins  last  case  is 
(N.  C.)  L.  259  (1858) ;  Stokes  v.  denied  in  10  Alb.  L.  J.  382.  See  State 
State,  5  Baxt.  (Tenn.)  619  (1875).  v.  Ah  Chuey,  14  Nev.  79  (1879)  ;  s.c. 

2  Walker  v.  State,  7  Tex.  App.  245  33  Am.  Rep.  530. 

(1879);  s.c.  32  Am.  Rep.  596,  citintr  ^5  Baxt.  (Tenn.)  019  (1875);  s.c. 

State  v.  Graham,  74  N.  C  046  (1870)  ;  30  Am.  Rep.  72. 
s.c.  21  Am.  Rep.  493;  1  Am,  Cr.  Kep. 


SEC.  463.]  EVIDENCE  —  COMPETENCE.  607 

ney-general  was  improper,  and  should  not  have  been  per- 
mitted by  tlie  court.  We  greatly  deprecate  the  practice 
into  which  some  circuit  judges  have  fallen,  in  permitting 
inconi})etent  and  illegal  testimony  to  be  placed  before  the 
jury,  and  afterwards,  at  the  close  of  the  case,  withdrawing  it 
and  telling  the  jury  not  to  be  influenced  thereby.  Such 
testimony  should  be  promptly  rejected,  and  not  permitted  to 
go  to  the  jury  at  all,  for  jurors  with  minds  untrained  to  legal 
investigations  and  discriminations  are  sometimes  likely  to  be 
influenced  thereby,  although  such  incompetent  evidence  may 
be  afterwards  withdrawn." 

The  case  of  Stokes  v.  State  ^  is  criticised  b}^  the  supreme 
court  of  Nevada  in  the  case  of  State  v.  Ah  Chuey,^  where  it 
is  said :  "  The  defendant  Stokes,  if  he  was  the  guilty  person, 
was  making  evidence  against  himself  when  he  put  his  foot  in 
the  mud  near  the  scene  of  the  homicide,  and  when  arrested 
he  could  have  been  compelled  to  put  his  foot  in  that  track, 
against  his  will,^  and  if  his  foot  corresponded  with  the  track, 
that  fact  would  have  been  admissible  upon  the  tiial  of  his 
cause."  * 

Sec  462.  Same  —  Experiiucnts  out  of  court  with  foot- 
marks.—  In  the  case  of  State  v.  Sanders^  some  of  the  jurors, 
without  the  knowledge  or  consent  of  the  court,  made  experi- 
ments to  ascertain  whether  such  worn-out  boots  as  the 
witnesses  for  the  prosecution  described  would  make  such 
tracks  as  they  described,  and  this  was  held  to  be  such  error 
as  invalidated  a  conviction.'' 

Sec.  463.  Evidence  given  at  former  inquiries  into  the 
homicide  —  At  coroner's  ihquest.  —  The  statement  of  the 

1  5  Baxt.  (Tenn.)  C19  (1875)  ;  s.c.  liis  foot  in  a  soft  substance,  and  such 
30  Am.  Rep.  72.  impression   to  be  afterwards  used  in 

2  14  Nev.  79  (1879);  s.c.  33  Am.  comparisons  witli  other  footprints,  and 
Rep.  530.  the  results  put  in  evidence,  yet  where 

^  Tliis  is  manifestly  not  sound  doc-  such  confession  or  such  impression  is 

trine,  while  it  is  true  that  one  accused  made  tiirougli  compulsion  or  duress, 

of  a  crime   may  voluntarily  confess,  they  will  not  be  competent, 

and  such  confession   may  be  put  in  *  Citinc;  State  v.  Graham,  74  N.  C. 

evidence  against  him  if  made  without  646  (1876)  ;  s.c.  21  Am.  Rep.  493;  1 

hope  of  escaping  from  or  receiving  a  Am.  Or.  Rep.  182. 

less  punishment   thereby;   and  while  &  68  Mo.  202   (1878);  s.c.  30  Am. 

it  is  doubtless  also  true  that  one  ac-  Rep.  782. 

cused  of  crime   may  voluntarily  put  "  See  ante,  §  373. 


508  HOJNUCIDE.  [chap.  XXII. 

defendant  at  the  coroner's  inquest  upon  the  body  of  the  de- 
ceased, made  after  he  has  been  tokl  that  he  is  not  oblisred  to 
testify  in  any  manner  which  might  criminate  himself,  is  ad- 
missible upon  the  trial  of  an  indictment  against  him  for  the 
homicide.^  But  parole  evidence  cannot  be  received  of  what 
was  sworn  to  before  the  coroner's  inquest,  and  reduced  to 
writing  by  the  coroner.^  And  in  a  case  where  a  false  account 
is  given  by  the  prisoner  in  his  evidence  at  the  inquest,  this 
fact  may  be  considered  by  the  jury  as  a  suspicious  circum- 
stance.^ 

Sec.  464.  Same  —  At  preliminary  examination.  —  Testi- 
mony voluntarily  given  by  the  defendant  on  his  preliminary 
examination,  and  reduced  to  writing  and  signed  by  him,  may, 
when  properly  identified,  be  received  in  evidence  against  him.^ 
But  evidence  given  by  other  witnesses  at  the  preliminary  ex- 
amination cannot  be  introduced  as  evidence  in  chief  unless  it 
be  shown  that  the  witness  is  dead,^  or  out  of  the  jurisdiction 
of  the  court  ;^  but  he  maybe  cross-examined  as  to  statements 
made  by  him  at  the  preliminar}-  examination,  if  they  are 
shown  to  him  at  the  time.*^  Proof  that  the  examining  court 
refused  bail  to  the  defendant  is  not  admissible.^ 

In  the  case  of  Steagald  v.  State,^  as  a  foundation  for  the 
introduction  of  the  written  testimony  ot  certain  witnesses 
taken  before  an  examining  court,  the  state  introduced  the 
affidavit  of  one  M.,  which,  in  conformity  with  the  statute, 
recited  the  fact  that  the  said  witnesses  were  beyond  the  limits 
of  the  state,  having  removed  to  another  state.  The  defence 
disputed  the  truth  of  this   recital   of  the  affidavit,  and  re- 

1  State    V.    Gilman,    51     Me.    20G  (1887)  ;  s.c.  9  8.  W.  Kcp.  270.     Com- 

(1862)  ;  Kirby  r.  State,  23  Tex.  App.  pare  State  v.  Dufour,  31  La.  An.  804 

13  (1887)  ;  s.c.  5  S.  W.  Rep.  165.    See  (1879). 

Lovett    V.  State,  60   Ga.  257   (1878)  ;  &  State  v.  Taylor,  IMiill.  (N.  C.)  L. 

State  V.  Young:,  1   Winst.  (N.  0.)    L.  508  (1868). 

No.  1,  126  (1863)  ;  State  v.  Zellers,  7  «  Steapald  r.  State,  22  Tex.  App. 

N.  J.  L.  (2  Halst.)  220  (1824).     Com-  464  (1886)  ;  s.c.  9  Cr.  L.  Mag.  515; 

pare    Snyder    v.    State,    59    Ind.    105  3  S.  W.  Rep.  771. 

(1877).  '  See  Gunter  v.  State,  83  Ala.  96 

•estate   V.   Zellers,    7    N.   J.  L.    (2  (1887);    s.c.  10   Cr.  L.  Mag.  428;  3 

Halst.)  220  (1824).  So.  Rep.  600. 

3  Lovett  V.  StMte,  60  Ga.257  (1878).  ^^  Rieliardson  v.  State,  9  Tex.  App. 

*  State    V.    Miller,    .']5     Knn.    .328  612(1881). 

(1886)  ;  s.c.   10    V:a:  Rep.  865.     See  ■•'22  Tex.  App.  464  (1886)  ;  s.c.  9 

Bailey    v.    State,   26    Tex.    App.    706  Cr.  L.  Mag.  615 ,  3  S.  W.  Rep.  771. 


SEC.  467,]  EVIDENCE  —  COMPETENCE.  509 

quested  the  trial  court  to  place  the  affiant,  M.,  who  was  pres- 
ent in  the  court-room,  upon  the  stand,  so  that  he  liiiglit  be 
tested  as  to  his  means  of  knowledge  of  the  allegations  made 
in  the  affidavit.  The  trial  court  sustained  the  predicate  as 
laid,  and  refused  to  allow  the  examination  of  iM.  as  to  his 
means  of  knowledge.  The  appellate  court  held  that  in  the 
latter  ruling  the  court  erred. 

Sec.  465.  Same  —  At  a  foi-iner  trial.  —  Upon  the  second  or 
subsequent  trial  of  an  indictment  for  homicide  the  statements 
of  the  defendant,  made  at  a  former  trial  of  the  same  indict- 
ment, are  admissible  in  evidence.^ 

Sec.  466.    Same  —  Defendant's  affidavit  for  continuance. 

—  It  is  sometimes  proper  for  the  court  to  allow  admitted  in 
evidence  the  voluntary  statements  made  by  the  defendant  in 
an  affidavit  made  by  him  on  an  application  for  a  continuance, 
the  facts  of  which  have  been  demanded  by  the  prosecution ; 
but  where  such  is  the  case,  the  whole  affidavit  should  be 
read.2  Thus  in  Wheeler  v.  State  ^  the  defendant,  in  a  trial 
for  murder,  made  an  affidavit,  in  order  to  obtain  a  continu- 
ance, in  which  he  stated  what  he  expected  to  prove  by  absent 
witnesses.  The  prosecuting  attorney  said  he  "  would  admit 
the  affidavit,"  and  the  court  permitted  the  trial  to  proceed. 
The  court  refused  to  permit  the  entire  affidavit  to  be  read  to 
the  jury.  The  respondent  was  convicted  of  manslaughter. 
On  appeal  the  court  held  that  the  respondent  was  entitled  to 
have  the  whole  affidavit  read  to  the  jury,  and  for  that  reason 
ordered  that  the  judgment  be  reversed ;  and  it  appearing, 
from  the  record  in  this  cause,  that  the  appellant  had  served 
out  more  than  half  the  period  of  time  in  the  state's  prison 
for  which  he  was  sentenced,  it  was  ordered  that  the  same  be 
certified  to  the  governor,  to  the  end  that  the  appellant  might 
be  discharged. 

Sec.  467.  Legal  process  being  served  by  deceased  when 
killed.  —  Where  the  deceased  was  an  officer  of  the  law,  and  it 
is  charged  that  he  was  killed  while  executing  legal  process,  it 
is  proper  to  introduce  in  evidence  and  read  to  the  jury  the 

1  Dumas  r.  State, 63  Ga.  600  (1879).     (1856);     State    v.   Twiggs,    1    Winst. 

2  See   Coker  v.  State,  20  Ark.  53     (N.  C.)  L.  No.  1,  142  (1863). 
(1859)  ;  Wheeler  v.  State,  8  Ind.  113  »  8  Ind.  113  (1856). 


510  HOMICIDE.  *  [chap.  XXII. 

warrant,  or  other  process  in  the  execution   of  which  it  is 

claimed  tlie  deceased  came  to  his  death.  ^ 

♦ 

Sec.  468.  Proof  as  to  motive  —  Iininuiiity  from  prose- 
cution for  offence  charged.  —  Where  a  homicide  is  charged 
to  have  been  committed  by  the  defendant  in  order  to  escape 
prosecution  or  punislnnent  for  some  other  offence  of  which 
it  is  claimed  he  liad  been  guilty,  it  is  competent  to  prove  the 
commission  of  such  other  offence,  and  the  facts  and  circum- 
stances which  may  be  .connected  therewith,  in  order  to  show 
a  motive  in  the  defendant  for  killing  the  deceased.  Thus  it  is 
proper,  where  the  deceased  was  an  officer,  killed  while  attempt- 
ing to  make  an  arrest,  to  show  the  commission  by  the  defendant 
of  a  crime  for  which  it  is  claimed  that  the  deceased  was 
attempting  to  arrest  him.^  So  also  it  is  admissible  to  show  a 
former  crime,  for  which  the  deceased  was  the  prosecutor,  as 
showing  an  inducement  to  the  defendant  to  kill  the  deceased.^ 
Thus  evidence  that  the  defendant  had  stolen  money  from  the 
deceased  is  admissible  as  showing  motive  for  the  act,  the  de- 
ceased having  accused  the  defendant  of  the  stealing.*  And 
upon  a  trial  for  murder  alleged  to  have  been  committed  in  an 
attempt  to  conceal  stolen  goods,  evidence  tending  to  connect 
the  murder  witli  the  robbery  is  admissible,  in  order  to  show 
motive,  and  as  part  of  the  history  of  the  occurrence.^ 

It  is  said  by  the  supreme  court  of  Mississippi,  in  the  case 
of  Gillum  V.   State,^  that  where,  on  a  trial  for  murder,  it 

1  See  Boyd  v.  State,  17  Ga.  194  Tex.  App.  571  (1881);  Walker  v. 
(1855);  Comnionvvealth  r.  Murphy,  State,  (5  Tex.  App.  57(5  (1879)  ;  Cow- 
C5  Mass.  (11  Cush.)  472  (1853).  ard   v.  State,  6  Tex.  App.  59  (1879)  ; 

2  Floyd  y.  State,  82  Ala.  16  (1886)  ;  Boothe  v.  State,  4  Tex.  App.  202 
8.C.  2  So.  Rep.  683;  People  v.  Pool,  (1879)  ;  Bowen  v.  State,  3  Tex.  App. 
27  Cal.  572  (1865).  617  (1878). 

**  Garden    v.    State,    84    Ala.    417  ■*  lloberts     v.     Commonwealth,     8 

(1887)  ;  s.c.  4  So.  Hep.  823;  Dnnn   v.  S.  W.  Hep.  (Ky.)  270  (1888). 

Slate,  2  Ark.  229  (1839)  ;  s.c.  35  Am.  On  a  trial    for  murder,  an   indict- 

Dec.  54  ;  Turner  v.  State,  70  Ga.  765  ment  against  the  defendant's  brother 

(1883)  ;  Roberts  i-.  Commonwealth,  8  for  theft  from   the  deceased,  accom- 

H.  W.  Rep.   (Ky.)  270  (1888);  State  panied    by  testimony  of   the  brother 

V.  Patza,  3  La.  An.  512   (1848)  ;  Gil-  identifying  himself,  held  to  be  com- 

lum   V.   State,  62    Miss.    547    (1885)  ;  petent   to  show  the  motive.     Coward 

McCann  v.  People,  3    Park.    Cr.    Cas.  v.  State,  6  Tex.  App.  59. 

(N.   Y.)    272    (18.57);    McConkey   v.  ^  McConkey  r.  Commonwealth,  101 

Commonwealth,  101  Pa.  St.  416  (1882);  Pa.  St.  416  (1882). 

Kunde    V.    State,   22    Tex.    App.   65  «^  62  Miss.  547  (1885). 
(1887)  ;    overruling    Holt  t'.  State,  9 


SEC.  469.]  EVIDENCE  —  COMI'ETENCE.  511 

appears  that  the  defendant  thought  that  a  previous  indict- 
ment against  him  for  illegal  liquor  selling  was  procured  by 
the  deceased,  such  indictment  is  held  competent  evidence  as 
tending  to  show  a  motive  for  the  killing. 

In  Floyd  v.  State  ^  a  policeman,  while  on  duty,  attempted 
to  arrest  the  defendant,  for  whom  he  had  no  warrant,  hut 
who  was  at  the  time  charged  with  a  felony,  and  was  shot  by 
the  defendant  while  fleeing  and  pursued,  evidence  of  the  pend- 
ency of  the  indictment  against  the  defendant  and  forfeiture 
of  his  bail  bond,  the  reward  offered  for  his  arrest  by  his  sure- 
ties, his  acquaintance  with  the  deceased  as  a  policeman,  and 
the  knowledge  of  all  these  facts  by  the  deceased,  is  relevant 
and  material  as  shedding  light  on  the  animus  of  the  defendant, 
and  as  bearing  on  the  question  of  self-defence. 

To  show  a  motive  for  the  killing,  a  pending  indictment, 
upon  the  finding  of  which  the  deceased  was  a  witness,  against 
the  defendant  for  burglary  of  the  deceased's  house,  is  admissi- 
ble, where  there  is  evidence  of  threats  made  by  the  defendant 
against  the  deceased  in  reference  to  the  charge  of  stealing 
contained  in  the  indictment,  and  because  the  deceased  ap- 
peared as  a  witness  before  the  grand  jury,^  for  the  very  good 
reason  that  it  tends  to  show  malice  against  the  deceased  as 
the  supposed  prosecutor.^ 

Sec.  469.  Same  — Proof  of  guilt  of  the  crime  charged. — 
It  is  unquestionably  true  that,  as  a  general  rule,  testimony 
of  the  prisoner's  guilt,  or  participation  in  the  commission  of 
a  crime,  or  felony,  wholly  unconnected  with  that  for  which 
he  is  put  upon  his  trial,  cannot  be  admitted ;  *  but  in  those 
cases  where  the  scieyiter  or  quo  animo,  is  requisite  to,  and 
constitutes  a  necessary  and  essential  part  of  such  guilty 
knowledge,  or  malicious  intention,  in  regard  to  the  trans- 
action in  question,  evidence  as  to  such  acts,  conduct,  or 
declarations  of  the  accused  as  tend  to  establish  such  knowl- 
edge or  intent,  is  competent  legal  testimony  to  go  to  the 
jury,  notwithstanding  they  may  in  law  constitute  a  distinct 
crime.     Thus  upon  an  indictment  for  murder,  former  grudges 

1  82  Ala.  IG  (1886)  ;  s.c.  2  So.  Rep.  '  See  Marler  v.  State,  68  Ala.  580 
683.                                                                   (1881)  ;    s.c.   67    Ala.    55 ;    Cliilds    v. 

2  Garden    v.    State,    84    Ala.    417     State,  55  Ala.  25  (1876). 

(1887)  ;  s.c.  4  Sc>.  Rep.  823.  *  1  Greenl.  Ev.  (14th  ed.)  §  52. 


512  HOMICIDE.  [chap.  XXII. 

and  antecedent  menaces  may  be  proved  to  show  the  prisoner's 
malice  against  the  deceased  and  his  motive  for  committing 
the  offence ;  ^  but  testimony  as  to  a  distinct  murder,  committed 
by  the  prisoner  at  a  different  time,  or  of  some  other  felony,  or 
transaction  committed  upon  or  against  a  different  person,  at  a 
different  time,  in  which  the  prisoner  participated,  cannot  be 
admitted  until  proof  has  been  given  establishing,  or  tending  to 
establish,  the  offence  with  which  he  is  charged,  and  showing 
some  connection  between  the  different  transactions.  Such  facts 
or  circumstances  as  will  warrant  a  presumption  that  tlie  latter 
grew  out  of,  and  to  some  extent  was  induced  by  some  cir- 
cumstances connected  with  the  former,  as  are  calculated  to 
show  the  quo  animo,  or  motive  by  which  the  prisoner  was 
actuated  or  influenced,  in  regard  to  the  subsequent  trans- 
action, are  comj^etent  and  legitimate  testimony.^ 

In  the  recent  case  of  Garden  v.  State,^  evidence  was  ad- 
mitted to  show  that  the  deceased  had  been  instrumental  in 
procuring  an  indictment  against  the  accused  for  burglary, 
and  that  the  defendant  had  made  threats  against  the  deceased 
in  reference  to  the  charg'e  of  stealinsr  contained  in  the  indict- 
ment,  and  because  he  appeared  as  a  witness  before  the  grand 
jury ;  but  the  court  say  that  it  was  not  competent  for  the 
state  to  enter  into  an  investigation  as  to  the  *guilt  or  inno- 
cence of  the  defendant  of  the  charge  of  burglary  or  larceny 
involved  in  that  indictment ;  that  the  merit  of  that  prosecu- 
tion could  not  be  entered  into  on  the  trial  for  murder.  ""If 
it  could  be,"  the  court  say,  "  there  would  virtually  be  a  trial 
of  two  separate  felonies  charged  against  the  same  defendant, 
progressing  simultaneously  on  their  merits  and  on  distinct 
indictments ;  for,  if  the  state  w^ere  permitted  to  prove  the 
guilt  of  the  defendant  under  the  burglary  indictment,  it 
Avould  be  competent  for  the  defendant  to  rebut  this  evidence 

'  1    Greonl.    Ev^    (14th  ed.)    §  5.1*  it  is  competent   to  show  the  guilt   of 

1    Piiill.   Ev.   1(59;    Roscoe's    Cr.   Ev.  the  prisoner  as  to  tiie  former  murder, 

71.     See  Ilapalje's  Grim.  Proo.  §  248,  for  the  purpose  of  showing  a  motive 

suhd.  2.  for  liis  conduct  respecting  tlie  murder 

2  Thus  where  a  person  is   indicted  in    question.     Dunn    r.  State,  2    Ark. 

as  accessory   before  the   fact    to   the  220    (1889);    s.c.    .35    Am.    Dec.    54; 

crime  of   murder  and  it  appears  that  State  v.  Patza,  P>  La.  An.  512  (1848). 
the  inducement  to  tlie  murder  was  the  ^  Si   Ala.  417   (1887);    s.c.   4    So. 

exertions  of  the  deceased  to  ascertain  Rep.  823. 
the  perpetrators  of  a  former  murder, 


SEC.  470.]  EVIDENCE  —  COMPETENCE.  513 

by  proof  of  the  contrary,  showing  his  innocence.  This  wouhi 
in  every  essential  be  a  trial  for  another  felony  other  than 
murder,  which  is  alone  involved  in  the  indictment  under 
which  the  defendant  is  charged  in  the  trial  for  murder. 
This  would  not  only  muti[)ly  issues  indefinitely,  as  any  num- 
ber of  similar  collateral  indictments  might  be  injected  into  a 
pending  prosecution ;  but  it  would  operate  greatly  to  preju- 
dice the  defendants  so  as  to  render  a  perfectly  fair  trial  of 
them,  in  any  instance,  impracticable,  if  not  quite  impossible.^ 

Sec.  470.    Same  —  Prevention  of  testimony  by  deceased. 

—  On  the  trial  of  an  indictment  for  homicide  it  is  competent 
to  prove  that  the  defendant  might  be  benefited  by  tlie  death  of 
the  deceased,  because  the  deceased  would  have  been  a  witness 
against  the  defendant  in  some  judicial  proceeding  against  him, 
or  between  him  and  a  third  person,  either  civil  or  criminal.^ 
Thus  it  has  been  held  that  in  order  to  establish  a  motive  in  a 
murder  trial,  it  may  be  shown  that  the  defendant  had  filed  a 
bill  for  divorce  against  his  wife  ;  and  that  the  deceased  was. 
the  principal  Avitness  for  her.-^  Also  that  where  the  deceased! 
was  killed  by  an  assault  made  by  three  defendants  on  her 
father  and  brother,  the  state  may  show  that  one  of  the  de- 
fendants, who  was  indicted  as  principal  in  the  first  degree,. 
had  been  prosecuted  for  stealing,  and  that  the  father  and 
brother  were  witnesses  against  him,  it  appearing  that  the 
quarrel  was  in  relation  to  what  they  had  said  about  the 
stealing.^  In  Kunde  v.  State,^  on  the  trial  of  one  of  several 
defendants  indicted  for  murder,  the  state  introduced  in 
evidence  certain  indictments  found  subsequent  to  the  homi- 
cide, charging  the  defendants  with  the  theft  of  hogs,  the 
property  of  the  deceased,  and  with  perjury  ;  and  also  the 
testimony  of  the  justice  of  the  peace  before  whom  the  defend- 
ants were   prosecuted  for  the  offences  for  which  they  were 

1  See  Garrett  v.  State,  76  Ala.  18    N.   C.   7G6   (1881)  ;    State  v.  Morris, 

(1884)  ;  Stewart  r.  State,  78  Ala.  430     84  N.  C.  756   (1881)  ;  Kunde  r.  State, 

(1885)  ;  McAnally  r.  State,  74  Ala.  9     22  Tex.  App.  65  (1886)  ;  s.c.  3  S.  AV. 
(1883)  ;  Marler  v.  State,  68  Ala.  580     Rep.  325. 

(1881)  ;  s.c.  67  Ala.  55;  Commander  3  Marler    ;•.    State.    68    Ala.    580 

V.  State,  60  Ala.  1  (1877)^  (1881). 

2  See  Marler  v.  State,  68  Ala.  580  *  Mask  r.  State,  32  Miss.  405  (1856). 
(1881);  Mask  v.  State,  32  Miss.  405  5  92  Tex.  App.  65  (1887);  s.c.  3 
(1856)  ;  IMurpliy  v.  People,  63  N.  Y.  S.  W.  Rep.  325. 

590    (1876)  ;    State    v.    Brantley,    84 


514  HOMICIDE.  [chap.  XXII. 

afterwards  indicted,  at  which  trials  the  deceased  was  an 
indispensable  witness  for  the  state.  The  court  held  that  the 
evidence  of  the  justice,  though  meager  and  indefinite,  to- 
gether with  the  indictments,  were  admissible  to  show  a 
motive  for  the  crime. 

In  the  case  of  Murphy  r.  People,^  upon  the  trial  of  an 
indictment  for  murder,  it  appeared  that  the  deceased  was 
killed  by  a  shot  fired  through  a  window.  G.,  who  sat  near 
the  deceased  at  the  time,  and  was  wounded  by  the  same  shot, 
after  having  testified,  upon  the  trial  as  a  witness  for  the 
prosecution,  that  he  was  defendant  in  three  suits  commenced 
against  him  by  the  prisoner  which  were  pending  at  the  time 
of  the  murder,  and  that  the  deceased  had  accompanied  him 
several  times  to  attend  the  trial  of  said  actions,  was  permitted 
to  testify,  under  a  general  objection,  as  to  wliat  the  actions 
were  brought  for.  This  was  not  error.  The  evidence  was 
proper  as  showing  a  motive  for  the  commission  of  the  crime, 
and  that  the  strength  of  the  motive  might  depend  upon  the 
nature  of  the  controversy  and  the  extent  of  the  pecuniar}^ 
interests  involved;  also  that  in  the  absence  of  a  specific 
objection  to  the  form  of  the  proof,  i.e.,  that  the  fact  could 
not  be  proved  by  parole  evidence,  it  was  to  be  assumed  that 
the  question  intended  to  be  raised  by  the  objection  was  as  to 
the  competency  of  proof  of  the  fact,  not  to  the  mode  of 
proving  it. 

Sec.  471.  Same  —  Promotion  of  plans  of  secret  organi- 
zation. —  In  a  trial  for  homicide,  any  evidence  which  fairly 
tends  to  prove  a  conspiracy  between  the  persons  to  commit 
murder  is  admissible  although  not  tending  directly  to  prove 
the  murder  charged,  and  particularly  is  this  true  in  a  case 
where  such  testimony  tends  to  corroborate  and  render  more 
credible  the  testimony  tending  directly  to  prove  the  murder 
charged.2  On  this  principle  it  is  competent,  upon  a  trial  for 
.  murder,  to  introduce  evidence  to  the  effect  that  defendant  is 
an  agent  or  member  of  a  secret  organization  or  association, 
criminal  in  its  character  and  object,  and  that  the  homicide 
was  committed  in  the  carrying  out  of  flie  common  designs 

1  63  N.  Y.  590  (1876).  St.  107   (1877)  ;  s.c.  2  Am.  Cr.  Rep. 

2  Carroll  v.  Comnionweiilth,  84  Pa.     2!H). 


SEC.  472.]  EVIDENCE — COMPETENCE.  515 

and  purposes  of  such  secret  organization,  in  order  to  prove  a 
motive  in  defendant  for  its  commission.^ 

Thus  upon  a  trial  for  murder  attributed  to  agents  of  a 
secret  association,  known  as  Molly  Maguires,  the  prosecution, 
in  order  to  show  the  motive,  may  prove  the  existence  of  such 
criminal  organization,  and  may  show  that  one  division  of 
such  organization  furnished  men  to  commit  murder  in  com- 
pensation for  a  like  crime  by  members  of  another  division.^ 
And  in  State  v.  Walker,^  in  the  prosecution  of  the  Bald- 
Knobbers,  it  was  held  that  evidence  that  the  defendant  and 
others  met  in  a  secluded  place,  in  the  night,  armed  and 
masked ;  that  they  discussed  the  propriety  of  whipping 
different  persons  ;  that  they  went  two  miles  to  a  house,  killed 
two  of  its  inmates,  of  whom  one  was  a  person  they  had  con- 
templated whipping ;  and  that,  in  the  defendant's  presence, 
instructions  were  given  by  one  of  the  number  to  the  others 
as  to  what  they  should  swear  in  case  of  prosecution,  suffi- 
ciently establishes  a  conspiracy,  the  scope  of  which  included 
the  homicide  committed,  to  admit  evidence  that  defendant 
belonged  to  a  secret  organization,  whose  object  was  the 
destruction  of  property  and  maltreatment  of  persons;  and 
that  some  of  the  party,  on  the  way  from  the  rendezvous  to 
the  scene  of  the  homicide,  attacked  the  house  of  one  of  the 
murdered  men  and  found  him  absent. 

Sec.  472.  Same  —  Avarice. — Upon  the  trial  of  an  indict- 
ment for  murder  it  is  permissible  to  show  that  the  deceased 
was,  at  or  near  the  time  of  the  homicide,  possessed  of  a  con- 
siderable amount  of  money,  or  things  of  value,  which  tempted 
the  avarice  of  the  defendant,  and  so  constituted  a  motive  for 
killing  the  deceased ;  *  and  it  is  also  proper  to  prove  posses- 

1  McMaiius  V.  Commonwealth,  91  *  State  v.  West,  1  Houst.  Cr.  Cas. 
Pa.  St.  57  (1879) ;  Campbell  v.  Com-  (Del.)  371  (1873)  ;  State  v.  Rains- 
monwealth,  84  Pa.  St.  187  (1877);  barger,  71  Iowa,  746  (1887);  s.c.  31 
Carroll  v.  Commonwealth,  84  Pa.  St.  N.  W.  Kep.  865 ;  State  v.  Crowley,  33 
107  (1877)  ;  s.c.  2  Am.  Cr.  Rep.  290.  La.  An.  782   (1881)  ;  Marion  v.  State, 

2  Campbell  v.  Commonwealth,  84  20  Neb.  233  (1886)  ;  s.c.  57  Am.  Rep. 
Pa.  St.  187  (1877);  Carroll  v.  Com-  825;. Kennedy  v.  People,  39  N.  Y. 
monwealth,  84  Pa.  St.  107  (1877)  ;  245  (1868)  ;  Early  v.  State,  9  Tex. 
s.c.  2  Am.  Cr.  Rep.  290.  App.    476    (1881).      See   Ettinger   r. 

3  98  Mo.  95  (1888);  s.c.  9  S.  W.  Commonwealth,  98  Pa.  St.  338  (1881). 
Rep.  646. 


516  HO.AIICIDE.  [chap.  XXII. 

sion,  by  the  defendant,  of  unusual  sums  of  money,  or  of  other 
property,  after  the  homicide.^ 

In  Kennedy  v.  People,^  which  was  the  trial  of  an  indictment 
for  murder,  evidence  of  the  receipt  of  a  considerable  sum  of 
money  by  the  deceased  a  few  months  previous  to  the  murder 
was  held  competent  for  the  purpose  of  showing  a  motive  .for 
the  commission  of  the  murder;  and  in  Early  v.  State,^  on  a 
trial  for  the  murder  of  W.,  evidence  that  W.,  before  his 
removal  to  Texas,  where  he  was  killed  soon  afterwards,  had 
$2,500,  was  held  to  be  admissible  for  what  it  was  worth, 
although  remote.  It  is  said  in  State  v.  Crowley,*  that  upon 
a  trial  for  murder,  it  is  permissible  to  show,  by  the  inventory 
of  his  succession,  that  the  deceased  had  in  his  house  a  certain 
amount  of  money.  The  evidence  being  competent  as  bearing 
upon  the  motive- 
In  the  case  of  Marion  v.  State,'^  at  the  trial  of  an  indict- 
ment for  murder,  where  the  evidence  was  circumstantial,  the 
prosecution  was  permitted  to  prove  a  conversation  between  the 
defendant  and  the  deceased,  relating  to  a  purchase  of  property 
of  the  latter  by  the  defendant,  just  prior  to  their  departure  from 
home  together  and  to  the  alleged  killing,  the  defendant  having 
returned  alone  and  in  possession  of  the  property,  the  posses- 
sion of  which  was  to  be  retained  by  the  deceased  until  the  de- 
fendant had  paid  for  it.  The  evidence  was  held  con)petent  to 
show  a  motive  for  the  killing,  although  the  contract  had  been 
reduced  to  writing  and  given  to  deceased. 

It  is  said  by  the  Supreme  Court  of  Delaware  in  the  case  of 
State  V.  West,^  that  it  is  competent  for  the  state  to  show  that 
the  defendant  in  a  murder  trial  killed  the  deceased,  placed 
the  body  in  his  room  and  then  set  fire  to  it,  in  order  tliat 
it  might  be  supposed  that  he  himself  had  been  bttrned  up,  and 
in  order  that  he  might  obtain  the  money  payable  on  insurance 
policies  on  liis  life. 

In  Ettinger  v.  Commonwealth,'  on  trial  for  murder  of  a 
woman  in  a  house  wheie  she  lived,  an  accomplice  testified 
that  the  defendant  and  others  also  murdered  the  woman's 

1  State  /•.  Wintzinircrodc.  0  Orcg.  &  20  Neb.  23.S  (1880);  s.c.  57  Am. 
153  (1881).                    '  '        Hep.  825;  20  N.  W.  Kop.  Oil. 

2  39  N.  Y.  245  (18(58).  «  1  Houst.    Cr.    Cas.    (Del.)     371 

3  9  Tex.  App.  476  (1881).  (187.*.). 

*  .33  La.  An.  782  (1881).  '  98  Pa.  St.  338  (1881). 


SEC.  473.] 


EVIDENCE  —  COMPETENCE. 


517 


husband  at  the  same  time  and  phice,  and  afterwards  took  and 
cairied  away  money  which  was  on  the  premises.  Evidence 
that  the  defendant  knew  of  the  existence  of  this  money,  and 
where  it  was  kept,  was  hekl  to  be  admissible  to  show  motive.^ 

Sec.  473.  Same — - 1 ni proper  devotion  to  or  criminal 
intimacy  with  a  female.  —  On  the  trial  of  an  indictment 
for  murder,  it  is  proper  for  the  prosecution  to  introduce 
against  the  defendant  evidence  of  improper  devotion  to  or  crim- 
inal intimacy  with  a  female,  to  which  devotion  or  intimacy  the 
deceased  was  an  obstacle,  in  order  to  show  motive  in  the  de- 
fendant for  killing  the  deceased.'^ 

Thus  on  the  trial  of  a  prisoner  for  the  murder  of  his  wife, 
proof  that  the  prisoner,  during  the  year  preceding  the  homi- 
cide, applied  to  the  mother  of  a  single  woman  for  permission 
to  visit  her  daughter,  and  was  denied  it  because  he  was  a 
married  man,  is  admissible,  to  sliow  the  motive  for  his  com- 
mission of  the  crime .^  So  also  is  evidence  of  an  incestuous 
intercourse,"^  of  immediate  remarriage,^  declarations  of  inten- 


^  Upon  a  trial  for  murder,  where 
it  appears  tliat  defendant  was  bail 
for  deceased,  evidence  tliat  defendant 
said  deceased  had  threatened  to  ex- 
pose liis  (defendant's)  criminal  acts; 
that  defendant  had  agreed  to  furnish 
money  to  deceased,  and  failed ;  and 
that  deceased  had  a  policy  of  insur- 
ance upon  Iiis  life,  whicli  defendant 
was  to  receive,  is  admissible  to  show 
a  motive  for  the  crime.  State  v. 
Kainsbarger,  71  Iowa,  746  (1887). 

2  See  Marler  v.  State,  67  Ala.  55 
(1881)  ;  Hall  v.  Slate,  40  Ala.  698 
(1867)  ;  Felix  v.  State,  18  Ala.  720 
(1851)  ;  State  v.  Green,  35  Conn.  20.'. 
(1868) ;  State  v.  Waikins,  9  Conn.  47 
(1831);  s.c.  21  Am.  Dec.  712;  Fraser 
v.  Slate,  55  Ga.  325  (1875)  ;  s.c.  1 
Am.  Cr.  Kep.  315;  State  v.  Hinkie,  6 
Iowa,  380  (1858)  ;  St.  Louis  v.  State, 
8  Neb.  405  (1879)  :  Pierson  v.  People, 
79  N.  Y.  424  (1880)  ;  s.c.  35  Am.  Rep. 
524 ;  Stephens  r.  People,  4  Park.  Cr. 
Cas.  (N.  Y.)  396  (1859);  Stout  v. 
People,  4  Park.  Cr.  Cas.  (N.  Y.)  71 
(1858)  ;  Commonwealth  v.  Ferrigan, 
44  Pa.   St.  386    (1863);    Traverse   v. 


State,  61  Wis.  144  (1884)  ;  s.c.  6  Cr. 
L.  Mag.  103. 

3  Felix  V.  State,  18  Ala.  720  (1851). 

*  In  Stout  V.  People,  4  Park.  Cr. 
Cas.  (N.  Y.)  71  (1858),  the  prisoner 
and  his  sister,  Mrs.  L.,  were  indicted 
for  tlie  murder  of  L.  On  the  separate 
trial  of  the  prisoner,  evidence  was 
given  tending  strongly  to  show  that 
the  prisoner  and  Mrs.  L.  were  both 
present  at  the  homicide,  and  that  it 
was  the  result  of  a  violent  strnggle, 
in  which  all  three  were  in  some  way 
engaged  ;  that  the  deceased  had  been 
jealous  of  his  wife;  that  they  had 
lived  unhappily  together,  and  had 
quarreled  and  been  partially  sepa- 
rated; and  that  she  had  applied  to 
an  attorney  to  procure  a  divorce  from 
her  husband.  The  prosecution  then 
offered  evidence  tending  to  show  an 
incestuous  connection  between  the 
prisoner  and  Mrs.  L.  during  a  few 
months  immediately  preceding  the 
homicide.  Held,  that  such  evidence 
was  competent  on  the  question  of 
motive. 

5  In  State  v.  Green,  35  Conn.   203 


518  HOMICIDE.  [chap.  XXII. 

tions,^  and  anonymous  letters  shown  to  have  been  written  and 
mailed  by  the  accused.^ 

It  is  said  by  the  Supreme  Court  of  Georgia  in  the  case  of 
Fraser  v.  State-"^  that  upon  a  trial  for  murder  all  the  testimony 
going  to  show  motive  is  material  to  the  issue,  because  there 
can  be  no  murder  without  malice  and  no  malice  without 
motive.  Therefore,  testimony  to  the  effect  that  the  defendant 
had  step-children  living  with  him,  who  left  him  at  night  and 
were  taken  in  and  cared  for  by  the  deceased ;  that  the  reason 
which  particularly  induced  them  to  do  so  was  the  fact 
that  he  had  lived  in  illicit  cohabitation  with  one  of  the  girls, 
and  wished  to  marry  her,  coupled  with  the  other  fact  that 
the  deceased  had  taken  care  of  these  children,  and  refused  to 
give  them  up,  and  resisted  a  habeas  corpus  suit  for  them,  is 
admissible  as  showing  motive  for,  and  malice  in,  the  homi- 
cide. 

Sec.  474.  Same  —  Marital  infidelity.  —  Proof  of  the  in- 
fidelity of  the  wife  towards  her  husband  may  be  admissible 
upon  the  trial  of  an  indictment  against  the  husband  for  the 
murder  of  the  wife,  where  it  is  shown  that  the  defendant  knew 
of  such  infidelity  of  his  wife  at  the  time  of  the  killing ;  but 
where  such  knowledge  by  him  is  not  shown,  such  proof  of 
infidelity  is  incompetent.* 

(1868),  the  prisoner  was  indicted  and  suit,  already  begun  by  M.,  to  show- 
tried  for  the  murder  of  a  woman  to  motive.  Marler  v.  State,  67  Ala.  55 
whom  he  had  been  married,  and  witli  (1881). 

whom  he  was  living  as  his  wife,  held,  ^  !„   Stephens  v.   People,  4  Park, 

that  evidence  by  the  prosecution  was  Cr.  Cas.  (N.  Y.)  396  (1859),  an  anony- 

admissible  to  show  that  the  accused  nious    letter,    proved    to    have    been 

had  a  former  wife   still   living;  that  written  by  the  prisoner,  and  sent  to 

he   had  married   the   deceased  under  S.  C,  reflecting  upon  the  character  of 

an  assumed   name,  and   that  he  had  S.  B.,  a  young  lady  of  whom    S.   C. 

married    another   woman   within   five  was  the  suitor,  was  held  admissible  in 

weeks    after   the    murder;    such   evi-  evidi^'nce   against   the   prisoner,  on  a 

dence   being    admitted    to   repel    the  question   of    motive,    on     a    trial   for 

presumption  of  conjugal  affection  on  murder    of    the    prisoner's    wife    by 

the  part  of  the  accused.  poisoning,  it  being  charged,  and  there 

1  On  trial  of  M.  for  murder  of  C,  being  circumstances  tending  strongly 

testimony  of  R.  that  M.  stated  to  him  to  show,  that  the  object  of  the  pris- 

that  he,  M.,  was  tired  of  his  wife,  and  oner  in  committing  the  alleged  mur- 

intended  to  get  a  divorce  from  her,  der  was  to  enable  him  to  marry  S.  B. 
and  wanted  permission  to  marry  his,  »  55  Ga.  325    (1875)  ;    s.c.    1    Am. 

R.'s,  daughter,  held  admissible  in  con-  Cr.  Rep.  315. 

nection  with  evidence  that  C.  was  an  *  Phillips  ;•.  State,  2  Tc.x.  App.  139 

obstacle  to  the  success  of  the  divorce  (1887) ;  s.c.  2  S.  W.  Rep.  601. 


SEC.  476.]  EVIDENCE — COMPETENCE.  519 

Sec.  475.  Same  —  Jealousy.  —  In  order  to  show  a  motive 
in  defendant  for  the  connnission  of  the  homicide,  it  is  proper 
to  prove  that  the  deceased  and  the  defendant  were  both  suitors 
of  the  same  woman,  and  that  the  defendant  was  jeahjus  of 
the  deceased.^ 

It  is  said  in  Hunter  v.  State  ^  that  where,  upon  the  trial  of 
an  indictment  for  murder,  there  is  evidence  that  the  accused 
was  a  rejected  and  the  deceased  an  accepted  suitor  for  the  same 
woman,  the  fact  that  rumors  of  such  engagement,  and  of  the 
approacliing  marriage,  were  repeated  to  the  accused,  may  be 
admitted  as  a  fact  to  show  motive  for  the  crime.^ 

Sec  476.  Same  —  Reveug-e.  —  It  is  always  proper  to  in- 
troduce evidence  showing  feelings  of  hatred  and  revenge  by  the 
defendant  towards  the  person  killed,  as  furnishing  a  motive 
for  the  commission  of  the  murder  charged.* 

Thus  on  a  trial  for  murder,  evidence  that  the  defendant  had 
previously  been  convicted  of  a  burglary  of  the  deceased's 
house,  and  had  just  returned  from  serving  out  his  sentence 
therefor,  is  admissible  to  show  motive.^  And  it  has  been  held 
not  to  be  error  on  a  trial  for  murder  to  permit  a  witness  to 
testify  that  he,  as  foreman  for  the  deceased  and  his  partner, 
discharged  the  defendant  twice  from  their  employ,  and  that 
the  last  discharge  was  about  six  weeks  before  the  killing,  in 
order  to  show  a  motive  for  the  killing.^  In  State  v.  Lawlor'^ 
the  corpus  delicti  having  been  proved,  and  testimony  intro- 
duced tending  to  connect  the  defendant  with  the  commission 
of  the  crime,  it  appeared  that  the  deceased,  shortly  before 
the  homicide,  had  assaulted  a  woman  in  the  defendant's  com- 
pany.    The  court  held  that  the  state  might  show  that  the 

1  Hunter  v.  State,  43  Ga.  483  she  would  prove  a  curse  to  any  man, 
(1871) ;  McCue  v.  Commonwealth,  78     and  now  it  had  come  to  pass. 

Pa.  St.  185  (1875) ;    s.c.  1  Am.  Cr,  *  People     v.    Kern,    61     Cal.     244 

Rep.  268.  (1882).      See    Morrison    v.   State,    84 

2  43  Ga.  483  (1871).  Ala.  405  (1887)  ;  s.c.  4  So.  Rep.  402  ; 

3  In  McCue  v.  Commonwealth,  78  State  v.  Lawlor,  28  Minn.  216  (1881)  ; 
Pa.    St.    185   (1875);   s.c.   1   Am.   Or.  s.c.    9   N.    W.    Rep.    698;    Powell   v. 


Rep.  268,  on  a  trial  for  murder,  for  State,  13  Tex.  A  pp.  244  (IS 

tl>e  purpose  of  showing  motive,  evi-  °  Powell   v.    State,    13    Tex.   App. 

dence  is  admissible  that  tlie  prisoner  244  (1883). 

and    the    deceased    both    visited   the  ''  Morrison   v.    State,   84   Ala.  405 

same  woman,  and  that  just  after  the  (1887)  ;  s.c.  4  So.  Rep.  402. 

homicide,    the    prisoner   said  he  had  ^  28   Minn.  216   (1881)  ;    9  N.  W. 

warned  the  deceased  not  to  visit  her,  Rep.  698.    - 


520  HOMICIDE.  [chap.  XXII. 

defendant  and  the  woman  were  paramours,  as  tending  to  sliow 
a  motive  on  the  part  of  the  defendant  to  commit  the  crime. 

Sec.  477.  Proof  of  iusauity. —  The  evidence  which  is 
required  to  establish  the  insanity  of  the  defendant  must  be 
direct,  positive,  and  applicable  to  the  present  condition  of 
the  prisoner.  Insanity  cannot  be  proved  by  reputation,^  nor 
can  it  be  inferred  from  an  unnatural  homicide,^  nor  from  the 
overwhelming  barbarity.^  Neither  can  insanity  be  inferred 
from  the  fact  that  no  motive  is  shown  in  the  defendant  for 
committing  the  homicide."^  But  evidence  of  prior  insanity  is 
admissible  as  properly  bearing  upon  the  question ;  ^  and  so  is 
proof  of  the  insanity  of  other  members  of  the  defendant's 
family.^  Thus  in  the  case  of  Hagan  v.  State '  it  is  held  to  be 
error  to  refuse  to  permit  an  inquiry  into  the  mental  condition  of 
the  defendant's  immediate  relations.  It  is  said  in  State  v. 
Hoyt,^  that  where  the  defendant,  for  the  purpose  of  proving  his 
own  insanity,  introduces  evidence  that  his  sister  had  been  in- 
sane, the  counsel  for  the  state  may  be  allowed  to  inquire  what 
caused  her  insanity,  in  order  to  show  that  it  was  not  heredi- 
tary. But  in  the  recent  case  of  Hall  v.  Commonwealth,^  a 
trial  for  murder,  the  defence  being  insanity,  it  having  been 
shown  that  the  defendant  had,  since  his  seventh  year,  been 
subject  to  epileptic  fits,  it  was  held  that  evidence  tending  to 
show  that  the  defendant's  child,  then  a  girl  six  years  of  age, 
had  a  spasm  when  born,  and  had  been  subject  to  such  fits 
ever  since,  and  that  there  was  no  one  in  her  mother's  family 
who  had  ever  had  such  fits,  was  properly  excluded. 

1  State    u.    Hoyt,    47     Conn.    518  ^  state    v.    Felter,    25    Iowa,    67 

(1880)  ;  s.c.  36  Am.  Rep.  89  ;  Walker  (1868)  ;    s.c.  2    Cr.    Def.  92  ;    United 

V.    State,    102    Iiid.   502    (1885)  ;   s.c.  States   v.   Guiteau.  10  Fed.  Rep.  161 

1  N.'E.  Rep.  856;   Hall  v.   Common-  (1882);  s.c.  3  Cr.  L.  Mug.  447,  680; 

wealth,    10    Cr.    L.    Mag.    (Pa.)    409  16  Am.  Law  Rev.  85;  2  Cr.  Def.  163. 
(1888)  ;  s.c.  12  Atl.  Rep.  163.  «  State    v.    Hoyt,    47     Conn.    518 

•^  State    V.   Coleman,  20   S.   C.   441  (1880)  ;  s.c.  Law.  Insan.  92.     See  Hall 

(1883).  f.    Commonwealth,    10    Cr.    L.    Mag. 

8  United  States  v.  Guiteau,  10  Fed.  (Pa.)  409  (1888);  s.c.  12  Atl.  Rep.  163, 

Rep.  KJl   (1882)  ;  s.c.  3  Cr.  L.  Mag.  Hagan  r.  State,  5  Raxt.   (Tenn.)  615 

347,  680;  16  Am.  Law  Rev.  85;  2  Cr.  (1875);  s.c.  Law.  Insnn.  833. 
Def.  163.  ^  5  Baxt.  (Tenn.)  615  (1875)  ;  s.c. 

•«  State  V.   Stark,  1   Strobh.  (S.  C.)  Law.  Insan.  833. 
L.  479  (1847)  ;  United  States  v.  Gui-  ^  47  ^onn.  518  (1880). 

teau,   10    Fed.  Rep.  161   (1882)  ;    s.c  »  10  Cr.  L.  Mag.  (Pa.)  409  (1888)  ; 

3  Cr.  L.  Mag.  347,  680 ;   16  Am.  Law  s.c.  12  Atl.  Rep.  163. 
Rev.  85 ;  2  Cr.  Def.  163. 


SEC.  477.] 


EVIDENCE  —  COMPETENCE. 


521 


Where  insanity  is  set  up,  the  defendant's  coolness  and 
unconcern  may  be  considered,  but  in  such  a  case  it  is  proper 
for  the  prosecution  to  show  facts  which  may  rebut  the 
inference  that  such  coolness  and  unconcern  could  only  arise 
from  an  abnormal  condition  of  the  mind.^  And  it  may  be 
generally  said  that  it  is  proper  to  consider  the  general  con- 
duct, condition,  appearance,  and  language  of  the  defendant 
in  determhiing  the  question  raised  by  the  jjlea  of  insanity .^ 
Thus  evidence  may  be  introduced  showing  an  attempt  to 
commit  suicide  ;  ^  the  collection  of  valueless  articles,'*  and  that 
the  defendant's  mind  has  been  unhinged  by  domestic  trouble  ^ 


1  Thus  ill  Hopps  v.  People,  31  III. 
.385  (18(3:]) ;  s.c.  83  Am.  Dec.  231 ; 
Law.  Insan.  414,  it  was  held  that 
wiiere  the  defence  is  insanity,  and  the 
coolness  and  unconcern  of  the  pris- 
oner at  the  time  he  committed  the 
homicide  are  relied  upon  as  justifying 
inferences  favorable  to  the  plea,  it  is 
competent  to  show  that  the  prisoner 
had  been  in  early  years  engaged  in 
the  perilous  calling  of  smuggling,  as 
tendhig  to  rebut  the  inference  that 
liis  deportment  on  the  fatal  occasion 
was  attributable  to  a  want  of  sanity. 

2  See  State  i-.  West,  1  Houst.  Cr. 
Cas.  (Del.)  371  (1873)  ;  State  v.  Jones, 
64  Iowa,  349  (1884);  s.c.  17  N.  W. 
Rep.  911;  20  N.  W.  Rep.  470;  Spen- 
cer V.  State,  69  Md.  28  (1888)  ;  s.c. 
13  Atl.  Rep.  809;  State  v.  Shoultz,  25 
Mo.  128  (1857)  ;  State  v.  Anderson, 
4  Nev.  265  (18(58) ;  Sanchez  v.  People, 
22  N.  Y.  147  (1860) ;  Patterson  v. 
People,  46  Barb.  (N.  Y.)  625  (18(i6)  ; 
People  V.  Thurston,  2  Park.  Or.  Cas. 
(N.  Y.)  49  (1852)  ;  Jacobs  v.  Com- 
monwealth, 121  Pa.  St.  586  (1888)  ; 
s.c.  15  Atl.  Rep.  465;  Hall  v.  Com- 
mon wealtli,  10  Cr.  L.  Mag.  (Pa.)  409 
(1888)  ;  s.c.  12  Atl.  Rep.  163  ;  Co,/!e  v. 
Commonwpnlth,  100  Pa.  St.  573  (1882)  ; 
s.c.  45  Am.  Rep.  307  ;  Spence  r.  State, 
15  Lea  (Tenn.)  539  (1885)  ;  Rurkhard 
V.  State,  18  Tex.  App.  599  (1885). 

^  An  attempt  to  commit  suicide 
raises  no  legal  presumption  of  insan- 
ity, but  may  be  considered  in  connec- 
tion with  other  evidence  bearing  on 
the    question    of   insanity.      Coyle    v. 


Commonwealth,  100  Pa.  St.  573 
(1882)  ;  s.c.  45  Am.  Rep.  397. 

■*  In  the  case  of  State  v.  West,  1 
Houst.  Cr.  Cas.  (Del.)  374  (1873),  the 
counsel  for  the  defendant  was  allowed 
to  produce  in  court  a  number  of  value- 
less articles  collected  by  the  defendant 
for  a  museum. 

5  Burkhard  v.  State,  18  Tex.  App. 
599  (1885).  But  in  Spencer  v.  State, 
69  Md.  28  (1888)  ;  s.c.  13  Atl.  Rep. 
809,  where  it  appeared  that  the  de- 
ceased had  assaulted  the  prisoner's 
wife  before  her  marriage  ;  that,  after 
her  death,  prisoner  called  on  the  de- 
ceased, induced  him  to  walk  with  him, 
accused  him  of  his  crime,  and  then 
shot  and  killed  him,  counsel  for  pris- 
oner proposed  to  prove  that  before 
the  wife's  death  she  had  attributed 
her  illness  immediately  to  the  assault 
by  the  deceased  ;  that  the  dead  body 
of  his  wife,  with  the  scars  inflicted  by 
the  deceased,  would  appear  to  pris- 
oner in  his  dreams ;  that  he  was 
haunted  with  the  idea  that  so  long  as 
the  deceased  lived  he  would  have  no 
rest  or  peace  of  mind ;  and  that  since 
tlie  death  of  the  deceased  the  prisoner 
had  found  rest  and  quiet.  On  appeal 
it  WHS  held  that  the  trial  court  did 
not  err  in  refusing  to  admit  such  tes- 
timony as  evidence  of  insanity;  coun- 
sel declining  to  assure  the  court  that 
he  would  follow  the  proof  of  these 
facts  with  other  proof  that  at  the 
time  of  the  homicide  the  prisoner  wns 
insane  and  not  responsible  for  his 
actions. 


522  HOMICIDE.  [chap.  xxri. 

or  the  use  of  liquor,^  but  isolated  incidents  relied  on  to  show 
insanity,  are  of  little  weight  on  a  trial  for  murder,  where 
their  peculiarities  can  be  traced  to  the  excessive  use  of 
liquor,^  and  where  the  person  has  generally  been  deemed 
sane,  and  has  always  been  dealt  with  as  such.^  And  evidence 
that,  from  the  weak  and  crippled  condition  of  the  defendant, 
he  was  rendered  nervous  and  peculiarly  sensitive  to  fear  and 
external  violence  is  admissible.'* 

The  inquiry  may  extend  to  a  reasonable  length  of  time 
before  the  homicide,  as  well  as  to  the  time  of  its  immediate 
commission,^  and  also  to  the  action  of  the  defendant  and  to  his 
condition  subsequent  thereto,  because  such  conditions  are  so 
connected  with  evidence  of  a  previous  state  of  insanity  as  to 
warrant  an  inference  of  its  continuance  at  the  time  of  the 
killing.*^   *• 

Sec.  478.  Same  —  Excessive  use  of  liquors.  —  On  a  trial 
for  murder,  where  the  defence  was  mental  irresponsibility,  it 
was  shown  that  the  accused  was  a  hard  and  habitual  drinker, 
but  was  quite  sober  when  he  committed  the  act.  A  medical 
expert,  after  examination,  thought  him  entirely  capable  of 
appreciating  what  transpired  about  him,  and  in  answer  to  an 
hypothetical  question,  which  failed  however  to  state  with 
exactness  the  prisoner's  habits  and  circumstances,  said  he 
would  be  incapable  of  discriminating  the  quality  of  his  acts. 
But  two  physicians  saw  no  indications  of  mental  unsound- 
ness, and  thought  his  conduct  at  the  time  of  the  killing  and 
afterward  showed  a  consciousness  of  the  nature  of  the  deed. 
The  accused  had  conducted  his  business  of  huckstering  with 
a  measui'able  degree  of  sagacity  and  success.     The  court  held 

1  Burkhard  v.  State,  18  Tex.  App.  Where  the  defence  was  insanity, 
599  (1885).  befrinning  in  1885,  and  defendant  was 

2  See  yjos/,  §  478.  permitted   great  latitude^  in    showing 

3  Spence  r.  State,  15  Lea  (Tenn.)  tlie  cliange  in  liis  disposition  from 
5.39  (1885).  that  date  until  the  homicide,  the  re- 

*  State    V.    Slioultz,    25    Mo.    128  fusal  of  evidence  as  to  his  kindly  na- 

(1857).  ture  prior  to  1885  worked  no  harm  to 

^  State    I'.    Jones,    G4    Iowa,    349  defendant.  Webber  r.  Commonwealth, 

(1884)  ;  Commonwealth  v.   Pomeroy,  119  Pa.  St.  223  (1888)  ;  s.c.  4  Am.  St. 

117  Mass.  143   (1875);  s.c.  Law.  In-  Rep.  634 ;  13  Atl.  Rep.  427. 
san.  799;  Sanchez  v.  People,  22  N.  Y.  ^  Commonwealth  r.  Pomeroy,   117 

147(1800);  Webber  (-.Commonwealth,  Mass.  143  (1875)  ;    s.c.  Law.    Insan. 

119  Pa.  St.  223  (1888);  s.c.    4   Am.  799. 
St.  Rep.  634 ;  13  Atl.  Rep.  427. 


SEC.  479.] 


EVIDENCE  —  COMPETENCE. 


523 


on  appeal  that  there  was  no  evidence  of  mental  unsoundness 
to  wan-ant  interference  with  the  verdict  of  murder  in  the  first 
degree.  ^ 

Sec.  479.  Same  —  Expert  and  opinion  evidence — Ex- 
perts.—  Upon  the  trial  of  an  indictment  for  homicide,  an 
expert  witness  may  give  his  opinion  upon  any  state  of  facts 
which  is  established,  or  which  is  assumed  to  have  been 
established,  not  only  as  to  the  nature  and  effect  of  the 
injury  which  caused  the  death,  but  also  as  to  the  manner 
and  the  means  employed.  ^  Thus  a  medical  expert  may 
give  testimony  as  to  the  direction  from  which  blows  were 
received,  and  the  character  of  the  instrument  Avitli  which 
the  injuries  were  inflicted  ;  ^  may  testify  from  the  appearance 
of  the  wound  through  the  hand,  whether  or  not  it  was  made 
wliile  the  liand  was  pressed  over  the  muzzle  of  a  revolver;* 
may  testify  as  to  the  effect  of  medicine  administered  and 
the  extent  of  wounds ;  ^  may  testify  as  to  tlie  effects  of 
poison  where  his  knowledge  is  acquired  by  experience,^  and 

V.  People,  4  Park.  Cr.  Cas.  (N.  Y.) 
319  (1859);  People  v.  Williams,  3 
Park.  Cr.  Cas.  (N.  Y.)  84  (1855); 
Pierson  v.  People,  18  Hun  (N.  Y.), 
239  (1879)  ;  Soquct  v.  State,  72  Wis. 
659  (1888)  ;  s.c.  40  N.  W.  Kep.  .391. 

3  Territory  v.  Egaii,  3  Dak.  119 
(1882). 

*  State  V.  Mahan,  68  Iowa,  .304 
(1886). 

^  On  a  trial  for  murder  for  poison- 
ing, a  medical  witness  who  has  testi- 
fied as  to  the  treatment  of  the  de- 
ceased may,  on  cross-examination,  be 
asked  as  to  the  effect  of  the  medi- 
cines administered;  also  as  to  whether 
he  was  under  the  impression,  at  the 
time  of  treatment,  that  the  deceased's 
intestines  were  severed  by  tlie  knife 
iised  by  tlie  accused.  Batten  i-.  State, 
80  In d' 394  (1881). 

s  On  a  trial  for  murder  by  poison- 
ing, a  medical  witness  is  not  qualified 
to  give  an  opinion  that  the  symptoms 
of  the  last  sickness  of  the  deceased 
indicated  poison  by  arsenic,  wlien  he 
has  never  seen  a  case,  nor  liad  any 
exjiericnce  whatever  in  cases  of  arsen- 
ical poisoning,  and  that  all  he  knows 


^  People  V.  Kenimler,  119  N.  Y. 
(1890)  ;  s.c.  24  X.  E.  Kep.  9;  41  Alb. 
L.  J.  464. 

^  Wi/liaws  V.  Slate,  64  Md.  384 
(1885);  s.c.  5  Am.  Cr.  Rep.  512;  1 
Atl.  Rep.  887.  See  Territory  v.  Egan, 
3  Dak.  119  (1882)  ;  Newton  v.  State, 
21  Fla.  53  (1884)  ;  Batten  v.  State,  80 
Ind.  394  (1881);  State  v.  Mahan,  68 
Iowa,  304(1886) ;  s.c.  20  N.  W.  Rep. 
449;  27  N.  W.  Rep.  249;  State  v.  Vin- 
cent, 24  Iowa,  570  (1868) ;  s.c.  95  Am. 
Dec.  753;  State  v.  Hinkle,  6  Iowa,  380 
(1858)  ;  State  v.  Baldwin,  .36  Kan.  1 

(1886)  ;  s.c.  9  Cr.  L.  Mag.  50;  12  Pac. 
Rep.  318,  affirmed  s.c.  7  Cr.  L.  Mag. 
512  ;  Ccminnnwpalth  v.  Stnrtirant,  117 
Mass.  122  (1875);  s.c.  19  Am.  Rep. 
401 ;  People  v.  Foley,  64  Mich.  148 
(1887);  s.c.  9  Cr.  L.  Mag.  345;  31 
N.  W.  Rep.  94 ;  People  v.  Barker,  60 
Mich.  277  (1886)  ;  s.c.  1  Am.  St.  Rep. 
501 ;    State    v.    Brooks,   92    Mo.    542 

(1887)  ;  s.c.  5  S.  W.  Rep.  257,  .3-30 ; 
People    V.    Willson,    109    N.    Y.    345 

(1888)  ;  s.c.  16  N.  E.  Rep.  ,540;  Pier- 
son  V.  People,  18  Hun  (N.  Y.)  2.39 
(1879);  Stephens  r.  People,  4  Park. 
Cr.  Cas.  (N.  Y.)  396  (1859) ;  Hartung 


524 


HOMICIDE. 


[chap.  xxii. 


may  give  testimony  as  to  the  suiliciency  and  identity  of  the 
poison.^ 

In  the  trial  of  an  indictment  for  infanticide  where  there  are 
no  marks  of  violence  upon  the  deceased,  it  is  not  erroneous  to 
admit  the  testimony  of  an  expert  to  the  effect  that  there  were 
several  modes  of  causing  death  without  leaving  upon  the 
body  any  evidence  of  the  means  employed  ;  ^  and  the  expert 
may  give  testimony  that  he  saw  another  physician,  at  an 
autopsy  on  the  body  of  the  deceased,  pass  his  linger  down  the 
trachea,  and  also  up  into  the  larynx,  such  testimony  being  for 

cident  to  their  profession  and  otlier- 
wise,  in:;luding  a  general  knowledge 
of  tlie  tests  of  the  presence  of  strych- 
nine. The  court  held  that  they  were 
experts,  but  that  tlie  jury  should  judge 
as  to  the  value  of  their  testimony. 
State  V.  Hinkle,  (1  Iowa,  380  (1858). 

On  tlie  trial  of  an  indictment  for 
murder  by  poison,  after  an  opinion 
adverse  to  the  theory  of  the  prosecu- 
tion liad  been  expressed  by  a  physi- 
cian, drawn  from  the  appearance  of 
the  autopsy,  an  experienced  chemist, 
who  iiad  assisted  at  the  post  mortem, 
was  asked :  "  In  your  opinion,  can  a 
pliysician,  from  the  appearance  of  the 
stomach  after  death,  determine  witli 
any  degree  of  certainty  the  precise 
period  when  the  poison  (arsenic)  first 
began  to  affect  it."  The  court  lield  that 
tlie  q\u'stion  was  competent.  Hartung 
V.  People,  4  Park.  Cr.  Gas.  (N.  Y.)  319 
(1850). 

-  State  V.  Morgan,  95  N.  C.  041 
(1886).  In  a  prosecution  for  tlie  mur- 
der of  an  infant,  upon  a  hypothetical 
statement  of  the  condition  of  the 
cliild's  body  when  found,  and  also  on 
post  mortem  examination  some  days 
afterwards,  the  question  propounded 
to  a  physician,  as  an  expert:  "  Wliat, 
in  your  opinion,  caused  the  death  of 
tlie  child?"  and  "in  your  opinion  is 
tl'.ere  any  disease  which  would  pro- 
duce deatli,  accompanied  by  the  con- 
ditions stated  in  the  hypothetical  case, 
in  an  infant  healthy  and  all  right  in 
every  respect  at  birth?  "  were  properly 
allowed.  People  v.  Foley,  64  Mich. 
148  (1887);  s.c.  9  Cr.  L.'  Mag.  345; 
31  N.  VV.  Rep.  94. 


on  the  subject  is  derived  from  medical 
or  scientific  books  and  medical  in- 
struction. Soquet  V.  State,  72  Wis. 
659  (1888)  ;  s.c.  40  N.  W.  Rep.  391. 

1  In  a  trial  for  murder  it  was 
claimed  that  the  murder  was  commit- 
ted by  administering  arsenic  to  the 
deceased  in  a  bowl  from  which  tea  and 
toast  had  been  fed  to  the  deceased  by 
the  prisoner.  Tlie  evidence  tended  to 
show  that  the  bowl  was  the  one  de- 
livered to  the  physician  who  analyzed 
its  contents  at  the  request  of  the  gov- 
ernment. Tiie  court  held  that  the  ques- 
tion of  suflaciency  of  identification  of 
the  bowl  was  for  the  jury,  and  that  the 
physician  might  testify  to  the  condi- 
tion and  contents  of  the  bowl,  and 
the  results  of  his  analysis,  tliough  the 
evidence  as  to  the  identity  of  the  bowl 
was  not  positive.  People  v.  Williams, 
3  Park.  Cr.  Cas.  (N.  Y.)  84  (1S.J5). 

It  is  competent  to  ask  a  physician, 
on  his  cross-examination,  to  give  his 
opinion  whetiier  certain  symptoms, 
particularly  specified,  were  those  of 
arsenical  poisoning,  when  the  witness 
has  previously  given  testimony  in  re- 
lation to  the  same  subject-matter,  and 
where  the  symptoms  inquired  about 
are  the  same  of  which  evidence  had 
been  previously  given  by  another  wit- 
ness. Stephens  v.  People,  4  Park. 
Cr.  Cas.  (N.  Y.)  396  (1859). 

The  question  being  as  to  whether 
strychnine  was  found  in  tlie  stomach 
of  the  deceased,  two  physicians  testi- 
fied that  they  were  not  practical  chem- 
ists, but  had  considerable  knowleilge 
of  chemistry  from  their  reading  and 
experimenting  to  some  extent,  as  in- 


SEC.  481.]  EVIDENXE  —  COMPETENCE.  525 

the  purpose  of  showing  that  there  was  no  obstruction  by 
which  the  deceased  might  have  choked  to  death,  and  is  not 
objectionable  because  such  looker-on  could  not  tell  whether 
the  finger  met  any  obstruction.^ 

A  witness  familiar  with  blood,  who  has  examined,  with  a 
lens,  a  blood  stain  on  a  coat,  when  it  was  fresh,  may  properly 
testif}^  that  it  appeared  to  have  come  from  below  upwards, 
although  he  had  never  experimented  with  blood  or  other  fluid 
in  that  respect.^ 

Sec.  480.  Same  —  Skilled  Avorknien.  —  And  skilled  work- 
men may  be  permitted  to  give  evidence  regarding  matters 
pertaining  to  tlieir  trade  or  avocation.  Thus  in  State  v.  Bald- 
win 2  a  panel  had  been  cut  and  taken  from  the  outside  door 
of  the  house  where  the  offence  was  committed;  and  when 
the  defendant,  who  was  a  carpenter,  was  arrested,  a  knife 
was  found  on  his  person  ;  Avitnesses  who  were  skilled  workers 
in  wood  were  called  and  permitted  to  testify  that  the  panel 
had  been  cut  out  with  a  knife,  and  that  the  blade  of  the  defend- 
ant's knife  exactly  fitted  the  place  where  the  panel  had  been 
pierced ;  that  it  had  been  cut  from  the  outside  by  one  skilled 
in  the  use  of  tools,  and  was  evidently  taken  out  by  one  who 
understood  the  construction  of  a  door. 

Sec.  481.  Same  —  Experts  in  insanity  cases.  —  It  is  com- 
petent for  medical  experts,  or  experts  in  insanity,  to  testify 
upon  the  question  of  the  insanity  of  the  defendant  according 
to  an  assumed  state  of  facts  hypothetically  submitted  to  the 
witness,*  or  from  his  own  opinion  shown  to  have  been  formed 

1  People  V.  WiUson,  109  N.  Y.  345  wealth,  14  Bush  (Ky.),  398  (1878)  ; 
(1888)  ;  s.c.  16  N.  E.  Rep.  540.  Commonwenlth    v.    mx/ers,    48    Mass. 

2  Commonwealth  I'.  Sturtivant,  117  (7  Mete.)  500  (1844);  s.c.  41  Am. 
Mass.  122  (1875);  s.c.  19  Am.  Rep.  l)ec.  458;  Sanchez  f.  People,  22  N.  Y. 
401.  147    (18fi0)  ;    People   r.   Schuyler,  43 

3  36  Kan.  1  (1886);  s.c.  0  Cr.  L.  Hun  (N.  Y.),  88  (1887);  State  v. 
Mag.  49,  50 ;  12  Pac.  Rep.  318  ;  affirm-  Hayrlen,  51  Vt.  296  (1878). 

ing  7  Cr.  L.  Mag.  512.  A   iiypothetical  question  as  to  the 

*  See    Gunter  v.  State,  83  Ala.  96  sanity  of  the  defendant,  put  to  a  phy- 

(1887);  s.c.lOCr.  L.Mag. 428;  (7i(p/(7v.  sician    employed    to    treat    prisoners 

State,  66  Ind.  94  (1879)  ;  s.c.  32  Am.  confined  in  jail,  wliicli  did  not  assume 

Rep.  99;    Law.  Insan.    455;    State   r.  the  existence  of   any   fact   wliich  re- 

Hockett,  70  Iowa,  442  (1886)  ;  s.c.  9  lated  to  the  defendant's   pliysical   or 

Cr.  L.  Mag.  208;  30  N.  W.  Rep.  742  ;  mental  condition   or  conduct,  while  in 

State     V.    Townsend,    66     Iowa,    741  jail,  or  of  any  fact  wJiicii  the  witness 

(1885);    s.c.    7    Cr.   L.   Mag.    65;    24  could    have    learned   while   attending 

N.  W.  Rep.  535;  Brown  v.  Common-  the  defendant  in  a  professional  capac- 


526 


HOMICIDE, 


[chap.  XXII. 


on  observation  of  the  defendant  —  his  language  and  conduct 
—  and  from  association  with  him.i  In  some  states,  however, 
the  opinion  of  an  ordinary  physician  will  not  be  received ;  he 
must  be  shown  to  be  conversant  with  insanity,  have  made  a 
study  of  tlie  subject,  and  had  experience  with  the  insane.^ 
But  in  those  states  the  opinion  of  a  physician  not  shown  to 
be  an  expert  is  admissible  in  evidence,  where  the  physician 
gives  the  facts  on  which  he  bases  his  opinion,^  as  is  done  by 
non-professional  witnesses. 

Sec.  482.  Same  —  Opinions  of  non-professional  wit- 
nesses as  to  insanity.  —  Where  the  defence  set  up  is  the 
insanity  of  the  defendant,  it  is  permissible  for  a  non-expert 


ity,  but  simply  called  upon  him  to 
give  his  opinion,  based  exclusively 
upon  facts  assumed  to  have  occurred 
before  defendant  was  known  to  the 
witness,  has  been  held  competent 
under  New  York  Code  Civil  Proced- 
ure, section  834.  People  v.  Sciiuyler, 
43  Hun  (N.  Y.),  88  (1887).  And  the 
fact  that  the  witness  testified  he  did 
not  think  it  possible  to  answer  the 
question  without  being  influenced  by 
the  opinion  formed  while  acting  as 
the  defendant's  physician,  did  not 
render  his  testimony  competent.  Peo- 
ple V.  Schuyler,  43  Hun  (N.  Y.),  88 
(1887). 

1  Brown  u.  Commonwealth,  14  Bush 
(Ky.),398  (1878);  State  v.  Hayden,51 
Vt.  296  (1878).  Compare  Sanchez 
V.  People,  22  N.  Y.  147  (1860)  ;  Peo- 
ple V.  Schuyler,  43  Hun  (N.  Y.),  88 
(1887).  See  Gunter  v.  State,  83  Ala. 
96  (1888);  s.c.  10  Cr.  L.  Mag.  428: 

3  So.  Rep.  600;  Tullis  v.  Kidd,  12 
Ala.  648  (1847);   Grant  v.  Thomp.^ou, 

4  Conn.  203  (1822)  ;  s.c.  10  Am.  Dec. 
119;  Burley  i-.  McGough,  115  111.  11 
(1885)  ;  Goodwin  v.  State,  96  Ind.  550 
(1884);  Coryell  r.  Stone,  02  Ind.  307 

(1878)  ;  Davis  v.  State,  35  Ind.  496 
(1871)  ;  State  v.  Foltes,  51  Iowa,  495 

(1879)  ;  State  v.  Felter,  25  Iowa,  67 
(1868)  ;  People  v.  Hall,  48  Mich.  482 
(1882)  ;  White  v.  Bailey,  10  Mich.  155 
(1862)  ;  State  v.  Baber,  74  Mo.  292 
(1881)  ;  People  v.  Schuyler,  106  N.  Y. 


298  (1887);  Van  Zandt  v.  Mutual 
Ben.  L.  Ins.  Co.,  55  N.  Y.  169  (1873)  ; 
Sanchez  v.  People,  22  N.  Y.  147 
(1860) ;  People  v.  Lake,  12  N.  Y.  358 
(1885)  ;  s.c.  1  Park.  Cr.  Cas.  (N.  Y.) 
495;  Landis  v.  Landis,  1  Grant  fPa.), 
249  (1855;  ;  liambler  v.  Tri/07i,  7  Serg. 
&  K.  (Pa.)  90  (1821);  sx.  10  Am. 
Dec.  444 ;  Lord  v.  Beard,  79  N.  C.  5 
(1878);  Puryear  v.  Reese,  46  Tenn. 
(6  Cold.)  21  (1868)  ;  Gibson  ;;.  Gib- 
son, 9  Yerg.  (Tenn.)  .329  (1836); 
Fairchild  v.  Bascomb,  35  Vt.  398,  408 
(1802);  Dejarnett  i\  Commonwealth, 
75  Va.  867  (1881)  ;  Quaife  v.  Chicago 
&  N.  W.  R.  Co.,  48  Wis.  513  (1879)  ; 
Matter  of  Will  of  Blakeley,  48  Wis. 
294  (1879) ;  Connecticut  Mat.  Life 
Ins.  Co.  V.  Lathrop,  111  U.  S.  612 
(1883)  ;  bk.  28  L.  ed.  5-36;  Dexter  ;•. 
Hall.  82  U.  S.  (15  Wall.)  9  (1872); 
bk.  21  L.  ed.  73;  United  States  v. 
Gulteau,  10  Fed.  Rep.  161  (1882)  ;  s.c. 
3  Cr.  L.  Mag.  347  ;  16  Am.  Law  Rev. 
85,  2  Cr.  Def .  103. 

-  Commonwealth  v.  Rich,  80  INIass. 
(14  Gray)  335  (1859).  See  Reed  v. 
State,  62  Miss.  405  (1884).  See  In- 
habitants of  Fayette  v.  Inliabitants  of 
Chestervillc,  77'  Me.  28  (1885)  ;  s.c. 
52  Am.  Rep.  741. 

3  See  Dickinson  r.  Barber,  9  Mass. 
225  (1812)  ;  s.c.  6  Am.  Dec.  58;  Ha- 
thorn  V.  King,  8  Mass.  371  (1811); 
s.c.  5  Am.  Dec.  100. 


SEC.  483.] 


EVIDENCE  —  COMPETENCE. 


527 


witness  to  give  his  opinion  upon  the  question  of  the  defendant's 
sanity,  where  such  opinion  is  formed  upon  facts  and  circum- 
stances within  his  personal  knowledge  and  observation,  and 
these  facts  and  circumstances  are  fully  set  forth. ^ 

Sec.  483.  Same  —  Non-experts.  —  While  it  is  a  rule,  gen- 
erally recognized,  that  Avitnesses  not  called  as  experts  must 
testify  only  to  facts,  yet,  facts  which  are  made  up  of  a  great 
variety  of  circumstances,  or  combination  of  appearances,  in- 
competent of  full  description,  may  be  shown  by  the  opinions  of 
ordinary  witnesses  where  their  observation  has  been  sufficient 
to  justify  it.  Upon  this  principle,  opinion  evidence  is  com- 
petent as  to  matters  involving  quantity,  magnitude,  length 
of  time,  space,  motion,  or  value,  and  as  to  the  appearance  and 
condition  of  persons  or  things,  as  grief,  excitement,  anger,  or 
fear.2  But  the  observation  of  the  witness,  and,  consequently, 
his  opportunity  therefor,  must  have  been  sufficient  to  have 
afforded  reasonable  ground  for  the  formation  of  an  opinion ; 

V.  Wood,  55  N.  Y.  634  (1873)  ;  O'Brien 
V.  People,  36  N.  Y.  276  (1867)  ;  s.c. 
48  Barb.  (N.  Y.)  274  ;  Clapp  v.  TuUer- 
ton,  34  N.  Y.  190  (1866)  ;  DeWitt  (,•. 
Barly,  17  N.  Y.  342  (1858)  ;  Clary  v. 
Clarv,  2  Ired.  (N.  C.)  L.  78  (1841)  ; 
C/m-k  V.  State,  12  Ohio,  483  (1843);  s.c. 
40  Am.  Dec.  481 ;  Pidcock  v.  Potter, 
68  Pa.  St.  342  (1871)  ;  s.c.  8  Am.  Rep. 
181 ;  Wilkinson  v.  Pearson,  23  Pa.  St. 
119  (1854)  ;  Norton  r.  Moore,  3  Head 
(Tenn.)  482  (1859)  ;  Dove  v.  State,  3 
Heisli.  (Tenn.)  348  (1872)  ;  Holconib 
V.  State,  41  Tex.  125  (1874);  Mc- 
Clackey  v.  State,  5  Tex.  A  pp.  320 
(1879)  ;  State  v.  Hayden,  51  Vt.  296 
(1878)  ;  Hatliaway  r.  Nat.  L.  Ins.  Co., 
48  "Vt.  .335  (1875)  ;  Morse  v.  Crawford, 
17  Vt.  499  (1845)  ;  Dejarnette  v.  Com- 
monwealtli,  75  Va.  867  (1881);  Con- 
necticut ]Miit.  Life  Ins.  Co.  v.  Lathrop, 
111  U.  S.  612  (1884)  ;  bk.  28  L.  ed. 
5.36;  Charter  Oak  Life  Ins.  Co.  i-. 
Rodel,  95  U.  S.  (5  Otto)  232  (1877)  ; 
bk.  24  L.  ed.  433;  Rex  v.  Wright,  R. 
&  R.  Cr.  Cas.  456  (1821). 

-  See  State  v.  Baldwin,  36  Kan.  1 
(1886)  ;  s.c.  9  Cr.  L.  Map:.  49 ;  12  Pac. 
Rep.  318,  affirming;  s.c.  7  Cr.  L.  Mag. 
512. 


1  Powell  V.  State,  25  Ala.  28  (1854); 
People  V.  Wreden,  59  Cal.  392  (1881)  ; 
People  V.  Sanford,  43  Cal.  29  (1872)  ; 
Dunham's  Appeal,  27  Conn.  193 
(1858)  ;  Grant  r.  Thompson,  4  Conn. 
203  (1822;  ;  Duffield  v.  Morris,  2  Harr. 
(Del.)  375  (1838)  ;  Potts  v.  House,  6 
Ga.  324  (1849)  ;  Upstone  r.  People, 
109  111.  169  (1883);  Rutherford  v. 
Morris,  77  III.  397  (1875)  ;  Colee  v. 
State,  75  Ind.  511  (1881) ;  State  v. 
Newlin,  69  Ind.  108  (1879)  ;  Eggers 
V.  Eggers,  57  Ind.  461  (1877)  ;  Suther- 
land r.  Hankins,  56  Ind.  343  (1877)  ; 
Leach  v.  Prebster,  39  Ind.  492  (1872)  ; 
Doe  V.  Reufjan,  5  Blackf.  (Ind.)  217 
(18.39)  ;  s.c.  33  Am.  Dec.  466  ;  Butler 
V.  St.  Louis  Ins.  Co.,  45  Iowa,  93 
(1876)  ;  Brooke  v.  Townshend,  7  Gill. 
(Md.)  10  (1848)  ;  State  ;•.  Klinger,  46 
Mo.  229  (1870);  Polin  v.  State,  14 
Neb.  540  (1883)  ;  s.c.  16  N.  W.  Rep. 
898;  Schlencker  v.  State,  9  Neb.  241 
(1879)  ;  s.c.  1  N.  W.  Rep.  857  ;  Hardr/ 
V.  Merrill,  56  N.  H.  227  (1875)  ;  s.c. 
22  Am.  Rep.  441,  overruling  State  v. 
Pike,  49  N.  H.  .399  (1870)  ;  s.c.  6  Am. 
Rep.  5.33 ;  Vanauken's  Case,  10  N.  J. 
Eq.  (2  Stockt.)  190  (1854);  People  i'. 
Conroy,  97  N.  Y.  62  (1884)  ;  Hewlett 


528 


HOMICIDE. 


[chap.  XXII. 


and  the  question  must  not  be  so  special  or  technical  as  to 
exclude  the  idea  of  competent  judgment  by  the  opinion  of 
professional  witnesses.^ 

Thus  non-experts  may  give  evidence  as  to  the  cause  of  the 
homicide  where  death  did  not  ensue  immediately  after  the 
infliction  of  the  wound ;  ^  as  to  the  feeling  of  good  or  ill  will 
existing  between  the  defendant  and  the  deceased;^  and  to  a 
non-expert  witness  may  testify  whether  the  defendant  in  a 
murder  case,  on  a  particular  occasion,  manifested  any  anger  at 
the  deceased ;  ^  as  to  the  similarity  of  tracks  ;  ^  as  to  blood  spots 
on  garments  or  elscAvhere  ;  ^  as  to  the  identity  or  resemblance 


1  Rash  V.  State,  Gl  Ala.  89  (1878)  ; 
People  V.  Bell,  49  Cal.  480  (1875); 
Blackmail  v.  State,  80  Ga.  785  (1888)  ; 
s.c.  7  S.  E.  Rep.  620;  Thomas  v.  State, 
07  Ga.  400  (1881)  ;  Everett  v.  State, 
02  Ga.  05  (1878)  ;  McGhinis  v.  State, 
31  Ga.  230  (1800)  ;  Fiiixly  i:  State,  30 
Ga.  400  (1800)  ;  Hawkins  v.  Slate,  25 
Ga.  207  (1858)  ;  s.c.  71  Am.  Dee.  100  ; 
Slate  V.  Donnelhi,  09  Iowa,  705  (1880)  ; 
s.c.  58  Am.  Rep.  234;  27  N.  W.  Kep. 
309;  State  c.  Malum,  08  Iowa,  304 
(1886);  s.c.  20  N.  W.  Rep.  449;  27 
N.  \y.  Rep.  249;  State  v.  Shelton,  04 
Iowa,  333  (1884)  ;  s.c.  20  N.  W.  Rep. 
459;  State  i'.  Muklleham,  02  Iowa, 
150  (1883)  ;  s.c.  17  N.  W.  Rep.  440 ; 
State  V.  Stackhouse,  24  Kaii.  447 
(1880);  Wise  v.  State,  2  Kan.  419 
(1804);  s.c.  85  Am.  Dec.  595;  Ken- 
nedy V.  Commonwealth,  14  Bush  (Ky.) 
340  (1878);  People  v.  Olmstead,' '.\{) 
Mich.  431  (1874)  ;  s.c.  1  Am.  Or.  Rep. 
301;  State  v.  Houser,  28  Mo.  233 
(1859)  ;  People  v.  Deacons,  109  N.  Y. 
374  (1888);  s.c.  10  N.  E.  Rep.  070; 
I'eople  V.  Fernandez,  35  N.  Y.  49 
(1806)  ;  People  ('.  Wilson,  3  Park.  Cr. 
Cas.  (N.  Y.)  199  (1850)  ;  Uihlerzook 
V.  Commonwealth,  70  Pa.  St.  340 
(1874);  Smith  v.  State,  43  Tex.  043 
(1875)  ;  Cooper  v.  State,  23  Tex.  331 
(1859). 

2  Smith  V.  State,  43  Tex.  043 
(1875). 

'^  State  V.  Stackhouse,  24  Kan.  447 
(1880). 

4  State 
(1884). 


Shelton,   04    Iowa,    333     (1800). 


^  A  witness  testified,  on  a  trial  for 
murder,  as  to  the  resemblance  be- 
tween tracks  found  near  the  scene  of 
the  homicide  and  other  tracks  admit- 
ted to  have  been  made  by  the  defend- 
ant. Some  of  the  latter  tracks  were 
made  under  compulsion,  and  the  evi- 
dence relating  to  these  tracks,  and  the 
opinions  of  witnesses  based  thereon, 
were  subsequently  withdrawn  from 
tiie  jury.  Held,  that  refusal  to  with- 
draw the  opinion  of  a  witness,  who 
stated  tliat  he  was  as  certain  about 
the  tracks  before  he  saw  those  made 
under  compulsion  as  after,  was  not 
error.  Blackman  v.  State,  80  Ga.  785 
(1888)  ;  s.c.  7  S.  E.  Rep.  026. 

fi  If,  on  a  trial  for  murder,  the 
prosecution  introduces  testimony 
showing  that  ccdored  spots  were 
found  on  the  prisoner's  clothes  and 
person,  wliicli  it  claims  were  blood, 
it  is  not  obliged  to  show  by  scientific 
analysis  that  such  spots  were  blood, 
but  may  rely  on  the  opinion  of  a  wit- 
ness who  saw  the  spots.  People  v. 
Bell,  49  Cal.  480  (1875). 

It  is  not  erroneous  on  a  trial  for  mur- 
der to  admit  evidence  from  witnesses, 
who  are  not  chemists,  that  the  clothes 
worn  by  the  accused  on  the  night  of 
the  murder,  and  j)ro(luced  for  inspec- 
tion on  the  trial,  were  marked  witli 
stains  apparently  produced  by  blood, 
when  found  in  possession  of  the 
ac'cused  at  the  time  of  his  arrest. 
People    f.    Fernandez,    35    N.    Y.    49 


SEC.  484.] 


EVIDENCE  —  COMPETENCE. 


529 


of  the  remains  of  the  deceased  ;  ^  but  not  as  to  the  intent  of 
the  defendant  ;^  or  that  he  was  restless  or  quiet  in  manner.'^ 
And  upon  the  trial  of  a  charge  of  manslaughter  under  a  stat- 
ute making  the  attempt  to  destroy  an  unborn  child,  in  certain 
cases,  manslaughter  where  the  death  of  such  child  or  the 
mother  is  thereby  produced,  evidence  of  a  woman  who  was 
with  such  mother  and  washed  her  and  chano-ed  her  clothes 
the  day  before  she  died,  as  to  the  appearance  of  the  bed  and 
clothes,  and  as  to  the  peculiar  offensive  odor  which  she  ob- 
served, is  competent.* 

Sec.  484.  Same  —  Experiments.  —  The  admission  of  tes- 
timony as  to  experiments  made  by  experts  and  others  in  rela- 
tion to  the  manner  or  means  by  which  the  homicide  is  charged 
to  have  been  committed,  is  largely  within  the  discretion  of 
the  court,  to  be  decided  according  to  the  peculiar  facts  and 
circumstances  surrounding  each  separate  case.  It  is  gener- 
ally competent,  however,  to  show  the  result  of  experiments 
made  in  the  proper  manner,  and  under  corresponding  circum- 


1  On  the  trial  of  an  indictment  for 
the  murder  of  "Goss,  alias  Wilson," 
a  ijhotograph  of  Goss,  testified  to  be 
like  a  mutilated  body  found,  held  to 
be  proper  evidence  to  be  submitted  to 
the  jury,  tliat  the  body  was  that  of 
Goss.  Udderzook  v.  Commonwealth, 
7G  Pa.  St.  340  (1874)  ;  s.c.  1  Am.  Cr. 
Rep.  311.  In  People  r.  Wilson,  3 
Park.  Cr.  Cas.  (N.  Y.)  199  (1856),  a 
brother  of  deceased  on  trial  for  mur- 
der, testified  that  five  months  after 
the  alleged  murder  he  saw  a  body 
claimed  to  be  the  body  of  deceased, 
and  examined  it.  He  testified  to  sev- 
eral points  of  resemblance.  He  was 
asked  by  the  government  whether  it 
was  in  his  opinion  the  body  of  the 
murdered  man.  Held,  that  the  ques- 
tion was  incompetent,  the  question 
being  for  the  jury,  the  body  having 
been  much  decomposed  and  he  having 
stated  all  the  points  of  resemblance. 

Where  a  mutilated  body,  whose 
face  was  discolored  and  swollen,  was 
found,  having  been  buried  apparently 
for  some  days,  and  the  one  who  found 


it  had  never  seen  the  person  before, 
held,  that  he  might  testify  that  the 
face  resembled  a  pliotograph  of  a 
person  alleged  to  be  the  one  found, 
but  the  question  whether  the  witness 
could  identify  it  was  one  for  the  jury. 
Udderzook  r.  Commonwealth,  76  Pa. 
St.  340  (1874)  ;  s.c.  1  Am.  Cr.  Eep. 
311. 

-  The  opinion  of  a  witness  that  a 
person  killing  anotlier  in  a  fight  had 
an  intent  to  kill  the  deceased  before 
the  fight  commenced,  is  not  compe- 
tent evidence  of  such  intent.  Pundy 
V.  State,  30  Ga.  400  (18()0). 

3  State  v.  Middleham,  62  Iowa,  150 
(1883)  ;  s.c.  17  N.  W.  Rep.  446. 

One  who  is  not  a  practising  physi- 
cian may,  after  describing  the  wound, 
give  his  opinion  that;  it  caused  death, 
and  may  give  his  opinion  with  reasons 
therefor,  that  the  deceased  could  not 
possibly  have  inflicted  the  wound  him- 
self. Everett  v.  State,  62  Ga.  65 
(1878). 

*  People  V.  Olmstead,  30  Mich.  431 
(1874)  ;  s.c.  1  Am.  Cr.  Rep.  301. 


;4 


530  HOMICIDE.  [chap.  XXII. 

stances  to  those  which,  it  is  claimed,  surrounded  the  commis- 
sion of  the  homicide.^ 

Thus  in  Commonwealth  v.  Piper  ^  a  witness  testified  that 
he  had  made  certain  experiments  upon  a  dynamometer,  an 
instrument  for  the  measuring  of  the  force  of  blows  and  the 
weight  of  falling  bodies,  by  striking  it  with  a  bat  of  substan- 
tially the  same  form  and  weight  as  that  with  which,  as  the 
government  contended,  the  murder  was  committed.  It  was 
held  that  the  court  might  properly,  in  its  discretion,  reject 
such  evidence  as  tending  to  mislead  the  jury,  unless  the 
experiments  were  shown  to  have  been  made  under  conditions 
the  same  as  those  existing  in  the  case  on  trial.  In  Common- 
wealth V.  Sullivan  ^  it  is  said  that  upon  a  trial  for  murder  the 
government  may  show  experiments  made  by  shooting  with 
the  pistol  which  gave  the  fatal  wounds  at  substances  similar 
to  the  clothing  worn  by  the  deceased  when  killed.  And 
where  it  is  a  question  whether  the  fatal  shot  was  fired  from  a 
pistol  in  the  hand  of  the  deceased,  or  from  one  in  the  hand 
of  the  prisoner,  both  of  which  were  produced,  it  is  not  error 
for  the  judge  to  refuse  to  allow  an  expert  to  experiment  with 
them  to  ascertain  from  which  the  shot  came,  that  being  a 
matter  wholly  within  the  court's  discretion.'^  But  evidence 
of  experiments  made  by  non-professional  witnesses  with  guns 
and  targets  is  inadmisssible  to  show  that  the  shooting  was 
done  at  short  range .^ 

Sec.  485.  Medical  and  scientific  books  and  writings.  — 
INIedical  and  scientific  works  and  writings  are  not  admissible 
in  evidence  for  the  purpose  of  proving  the  declarations  and 
opinions  which  they  contain,  unless  sanctioned  by  the  oath 
of  an  expert  witness,  who  is  not,  however,  confined  wholly 
to  his  personal  experience,  but  may  give  his  opinion  formed 
in  part  from  the  reading  of  books  and  writings  prepared  by 
other  persons  of  acknowledged  al)ility  ;  and  it  is  not  improper 
for  him  to  give  the  source  of  his  opinion,  and  to  state,  if  it 

1  See  State  v.  Smitli,  40  Conn.  37G  2  12O  Mass.  185  (1870). 

(1881)  ;  Conimonwcaltli  v.  Piper,  120  "  lo  Pliila.  (Pa.)  410  (1870). 

Mass.  185  (1870)  ;  State  v.  Justus,  11  ■»  State    v.    Smith,   40    Conn.    370 

Greg.  178  (1883);   s.c.  50  Am.  Hep.  (1881). 

470;  6  Am.  Cr.  Kcp.  511;  8  Pac.  Rep.  ^  gtate    v.    Justus,    11    Ore?.    178 

337;   Commonwealth   v.   Sullivan,  13  (1883);  s.c.  50  Am.  Rep.  470 ;  0  Am. 

Phila.  (Pa.)  410  (1879).  Cr.  Rep.  511. 


SEC.  486.] 


EVIDENCE COMPETENCE. 


531 


be  the  case,  that  all  the  authorities  oii  the  subject  have,  as 
far  as  he  knows,  supported  hira  in  his  opinion.^ 

And  it  has  been  held  that  scientific  or  medical  books  or 
writings  treating  of  insanity  cannot  be  regarded  as  legal 
authority,  except  as  the  views  set  forth  are  enforced  and 
supported  by  judicial  rulings  and  decisions.- 

Sec  486.  Hearsay  evidence.  —  Hearsay  testimony,  as  a 
rule,  is  admissible  to  prove  no  fact  which  is  in  its  nature  sus- 
ceptible of  proof  by  witnesses  testifying  of  their  own  knowl- 
edge.^ Such  evidence  is  not  usually  admissible  either  for  or 
against  a  person  upon  trial  for  a  liomicide,  unless  it  be  of  the 
res  (jestce^  and  where  it  is  admitted  against  the  defendant,  a 
conviction  will  be  reversed.''  Thus  it  has  been  said  that  on  a 
trial  for  murder,  the  declaration  of  a  third  person,  who  had 
as  strong  motives  as  the  prisoner  to  commit  the  murder, 
against  whom  there  were  strong  circumstances  of  suspicion, 
and  who  had  left  the  state,  that  the  prisoner  was  not  the 
right  man,  was  held  to  be  mere  hearsay,  and  inadmissible  for 


1  See  State  i-.  Baldwin,  36  Kan.  1 
(188G)  ;  s.c.  9  Cr.  L.  Mag.  49;  12  Pac. 
Rep.  318,  affirming  s.c.  7  Cr.  L.  Mag. 
512;  State  v.  O'Brien,  7  K.  I.  336 
(1862). 

-  State  V.  West,  1  Houst.  Cr.  Cas. 
(Del.)  371  (1873). 

3  Felder  v.  State,  23  Tex.  App.  477 

(1887)  ;  s.c.  59  Am.  Rep.  777  ;  5  S.  W. 
Rep.  145 ;  citing  Bradshaw  v.  State, 
10  Bush.  (Ky.)  576  (1874)  ;  Slielton 
V.  State,  11  Tex.  App.  36  (1882)  ; 
Means  v.  State,  10  Tex.  App.  16 
(1881);  Holt  V.  State,  9  Tc».  App. 
572  (1880). 

*  Stephens  v.  State,  20  Tex.  App. 
255  (1886)  ;  Segura  v.  State,  16  Tex. 
App.  221  (1885).  See  People  v. 
Simonds,  19  Cal.  275  (1861)  ;  People 
V.  Bealoba,  17  Cal.  389  (1861)  ;  For- 
man  v.   Commonwealth,  86   K_v.  605 

(1888)  ;  s.c.  6  S.  AV.  Rep.  579  ;  'Brown 
V.  People,  17  Mich.  429  (1868)  ;  s.c. 
97  Am.  Dec.  195  ;  Howser  v.  Common- 
wealth, 51  Pa.  St.  -332  (1865)  ;  State 
V.  Terrell,  12  Rich.  (S.  C.)  L.  321 
(1859). 

In  order  to  show  that  deceased  had 


a  weapon  at  the  time  he  was  killed, 
defendant  offered  to  prove  by  a  wit- 
ness that  the  witness  got  from  one  T. 
the  number  of  a  pistol  which  T. 
claimed  corresponded  with  the  one 
delivered  by  defendant  to  the  officer 
after  shooting  deceased,  wliich  defend- 
ant testified  he  took  from  the  body 
of  deceased.  Held,  hearsay.  Forman 
V.  Convnonwealth,  86  Ky.  605  (1888) ; 
s.c.  6  S.  W.  Rep.  579. 

On  the  trial  of  an  indictment  for 
murder,  a  witness  testified  that  he  saw 
R.,  who  was  supposed  to  be  a  particeps 
criminis,  with  another  person,  at  a  cer- 
tain place,  where,  if  certain  evidence 
introduced  by  the  defendant  to  estab- 
lish an  (tlihi  was  true,  neither  R.  nor 
tlie  defendant  could  have  been  at  the 
time  of  the  murder.  For  the  purpose 
of  fixing  the  date,  another  witness  was 
allowed  to  testify  that  the  first  witness 
told  him  on  tlie  following  morning 
that  he  saw  R.  and  another  person  the 
night  before.  Held,  that  the  evidence 
w;)s  inadmissible.  Brown  v.  People, 
17  Mich.  429  (1868). 


532 


HOMICIDE. 


[chap.  XXII, 


the  prisoner.^  It  is  thought,  however,  that  where  hearsay 
evidence  has  been  admitted,  but  afterwards  excluded  in  the 
charge  of  the  judge,  that  the  error  will  be  cured.''^ 

Sec.  487.  Impeaching-  evidence. — ^  The  rules  governing 
the  impeachment  of  witnesses,  and  the  admission  of  evi- 
dence for  that  purpose,  are  the  same  in  cases  of  homicide 
as  in  other  prosecutions.  A  witness  may  be  impeached  by 
proof  of  former  acts  or  statements  by  him,  contrary  to 
his  evidence ;  ^  or  his  credibility  may  be  affected  by  proof 
of  complicity  in    the  homicide,  or    the  acts    leading  to  it;* 


1  State  V.  Terrell,  ]^  Rich.  (S.  C.) 
L.  321  (1859). 

■^  See  People  r.  Bealoba,  17  Cal. 
389  (1861). 

3  See  People  v.  Williams,  18  Cal. 
187  (1861);  State  r.  Baldwin,  36  Kan. 
1  (1886);  s.c.  9  Cr.  L.  Mag.  49;  12 
Pac.  Rep.  318,  affirniing  s.c.  7  Cr.  L. 
Mag.  512  ;  State  u.  Walker,  98  Mo.  95 
(1888);  s.c.  9  S.  W.  Rep.  646;  State 
V.  Talbott,  73  Mo.  -347  (1881). 

Wliere  the  defendant  produced  a 
witness  who,  with  a  view  of  showing 
the  conscious  innocence  of  the  defend- 
ant, testified  what  his  conduct  and 
appearance  was  soon  after  the  death 
of  his  sister,  it  was  proper  to  inquire, 
on  cross-examination,  if  the  witness 
had  not  stated  at  the  preliminary  ex- 
amination that  the  conduct  of  the 
defendant  impressed  liim  at  once  as 
being  guilty  of  murder.  State  i'.  Bald- 
win, 36  Kan.  1  (1886)  ;  s.c.  12  Pac. 
Rep.  318,  affirming  s.c.  7  Cr.  L.  Mag. 
612. 

Where,  with  a  view  of  impeaching 
a  witness,  he  is  asked  if  he  did  not 
make  a  certain  statement  on  a  previ- 
ous examination,  and  he  replies  that 
"  it  amounts  to  about  the  same  thing," 
he  thereby  practically  admits  the 
making  of  the  statement,  and  his 
answer  is  sufficient  as  a  foundation 
for  impeachment.  State  v.  Baldwin, 
36  Kan.  I  (1886)  ;  s.c.  12  Pac.  Rep. 
318,  affirming  s.c.  7  Cr.  L.  Mag. 
512. 

In  a  trial  of  defendant  for  murder, 
a  participator  in  the  crime  furnished 


the  only  direct  evidence  ;  he  gave  a 
full  account  of  the  affair,  but  in  his 
account  conveyed  the  idea  that  he 
was  a  reluctant  and  unwilling  abettor, 
exonerating  himself  from  any  crimi- 
nality beyond  going  with  defendant 
for  the  purpose  of  chastising  the  de- 
ceased. On  cross-examination,  defend- 
ant's counsel  asked  witness  if  he  did 
not,  a  few  days  before  the  murder,  state 
that  he  intended  to  kill  the  deceased. 
The  theory  of  the  defence  was,  that 
the  witness  himself  did  the  murder. 
Held,  that  tiiis  question  was  admis- 
sible, as  tending  to  contradict,  inferen- 
tially,  witness's  statements  and  prove 
them  false.  People  v.  Williams,  18 
Cal.  187  (1861). 

A  son  was  tried  for  murdering  his 
father.  The  state  introduced  evidence 
tending  to  show  unfriendly  relations 
between  father  and  son.  The  father's 
widow  testified  that,  on  the  contrary, 
their  relations  were  friendly.  Held, 
that  the  state  might  show  in  rebult.nl 
that  the  widow,  before  her  husband's 
death,  in  speaking  of  a  difficulty  be- 
tween father  and  son,  had  said  that  if 
the  son  had  had  a  pistol  be  would 
have  shot  his  father,  and  that  he  was 
prepared  for  him.  State  v.  Talbott, 
73  Mo.  .347  (1881). 

■>  See  Craft  v.  State,  3  Kan.  450 
(1866)  ;  Tow  v.  State,  22  Tex.  App. 
175  (1887)  ;  s.c.  2  S.  W.  Rep.  582; 
Dubose  i:  State,  10  Tex.  App.  230 
(1881). 

A  state's  witness  may  be  shown  to 
have   directed   deceased   to  shoot  de- 


SEC.  488.]  EVIDENCE COMPETENCE.  533 

or  of  an  especial  interest  in  tlie  prosecution  of  the  defend- 
ant.^ 

It  has  been  hekl  that  dying  declarations  may  be  impeached 
by  evidence  of  statements  by  the  deceased  contradictory 
thereto ;  ^  but  the  supreme  court  of  Ohio  say  in  the  case  of 
Wroe  V.  State,^  that  where  dying  declarations  are  proved  in  a 
case,  a  statement  of  the  deceased  made  at  another  time, 
which  is  neither  a  dying  declaration  nor  a  part  of  the  res 
gestce,  is  not  admissible  to  impeach  such  declarations. 

Sec.  488.  Things  in  evidence.  —  Upon  the  trial  of  an  in- 
dictment for  homicide  it  is  proper  to  introduce  in  evidence 
any  and  every  thing  which  is  sliown  to  be  of  the  res  (jestce,  or 
to  be  properly  connected  with  the  homicide,  that  may  aid  in 
explaining  or  determining  any  disputed  question  connected 
with  the  charge  upon  which  the  defendant  is  being  tried.  Thus, 
it  is  competent  to  introduce  photographs  of  the  deceased,  taken 
during  his  lifetime,  in  order  to  aid  in  his  identification,  if 
that  is  in  question ;  *  or  a  photograph  of  the  wound.^ 

Diagrams  of  the  premises  where  the  homicide  is  shown  to 
have  occurred  are  also  admissible,  after  the  proper  foundation 
has  been  laid  by  showing  their  accuracy  and  the  skill  of 
the  draughtsman,^  or  such  diagrams  or  plans  may  be  referred 
to  by  witnesses  in  order  to  render  their  testimony  more  easily 
intelligible.'^     It  is  also  proper  for  the  jury  to  see  and  investi- 

fendant.     Tow  r.  State,  22  Tex.  App.  368    (1803)  ;    McPlierson    v.    State,  9 

175  (1887)  ;  s.o.  2  S.  W.  Rep.  582.  Yerg.  (Tenn.)  279  (1836)  ;  Felder  v. 

Upon  a  trial  for  murder,  in  which  State,  23  Tex.  App.  477  (1887)  ;  s.c. 
the  issue  was  the  identification  of  tlie  59  Am.  Rep.  777;  5  S.  W.  Rep.  145. 
defendant  as  tiie  murderer,  tlie  state  ^  20  Ohio  St.  460,  472  (1870). 
introduced  the  testimony  of  a  witness  *  Marion    v.    State,   20    Neb.    235 
against  whom   there  was  some  proof  (1886);    s.c.    57    Am.    Rep.    825;    29 
of  complicit}'.     Defendant  offered  to  N.  W.  Rep.  911.     See  Walsh  v.  Peo- 
prove  that  the  witness  was  at  enmity  pie,  88  N.  Y.  458  (1882);   Ruloff  v. 
with  the  deceased,  had  threatened  his  People,  45  N.  Y.  213  (1871)  ;  Udder- 
life,  and  carried  weapons  with  which  zook  r.  Commonwealth,  76  Pa.  St.  340 
to  take  it.     Defendant's  offer  to  prove  (1874)  ;  s.f.  1  Am.  Or.  Rep.  311. 
was    rejected.      Held,  error,   because          ^  Franklin    v.    State,    69    Ga.    36 
such    proof    proximatel}'    tended    to  (1882) ;  s.c.  47  Am.  Rep.  748. 
exculpate  the  defendant.     Dubose  v.          ^  Territory    r.    F.gan,    3    Dak.    119 
State,  10  Tex.  App.  230  (1881).  (1882)  ;  Smith  v.  State,  21  Tex.  App. 

'  SeeBeauchampi'.  State.OBlackf.  107  (1887). 
(Ind.)  300  (1842).  '  State    v.   Lawlor,   28    Minn.    216 

2  Moore    v.    State,    12    Ala.    704  (1881)  ;  s.c.  9  N.  W.  Rep.  698. 
(1848)  ;  People  v.  Lawrence,  21  Cal. 


534  HOMICIDE.  [chap.  XXII. 

gate  the  clothing  of  the  deceased,  and  its  condition,  as  shed- 
ding light  upon  the  manner  and  means  of  death,i  and  so  of 
the  clothing  of  defendant  shown  to  have  been  worn  by  him 
at  or  about  the  time  of  the  alleged  commission  of  the  homi- 
cide,^  and  their  production  in  evidence  is  not  a  violation  of 
the  constitutional  provision  that  no  person  shall  be  compelled 
to  give  testimony  criminating  himself.^ 

The  weapon  with  which  it  is  charged  the  homicide  was 
committed  is  also  competent  evidence ;  ^  and  so  is  property 
shown  to  belong  to  the  defendant  found  at  or  near  the  place  of 
the  homicide,  under  such  circumstances  as  show  an  apparent 
connection  between  the  property  and  the  killing.  Thus  vari- 
ous articles,  such  as  burglar's  tools  and  part  of  a  newspaper, 
found  in  a  room  occupied  by  the  accused  before  tlie  murder, 
and  at  the  scene  of  the  crime,  and  the  possession  of  which 
was  connected  with  the  prisoner  or  his  accomplices,  and  shoes 
found  at  the  place  Avhere  the  murder  was  committed,  fitting 
the  prisoner,  are  admissible  as  evidence  connecting  him  with 
the  murder.^ 

Sec.  489.  View  of  premises  by  jury.  —  At  common  law  a 
vicAv  by  the  jury  of  the  premises  could  not  be  had  except 
upon  the  consent  of  the  parties,^  but  statutes  have  been 
passed  in  most  of  the  states  permitting  such  views.  Under 
these  statutes,  granting  a  view  rests  largely  within  the  dis- 
cretion of  the  trial  judge."  The  purpose  of  such  a  view  is  to 
aid  the  jury  in  weighing  conflicting  testimony,  and  what 
they  see  does  not  itself  become  a  part  of  the  evidence.^ 

1  Story  r.  State,  99  Ind.  413  (1884);  Mluloff  v.  People,  45  N.  Y.  21.'i 
Hart  V.  State,  15  Tex.  App.  202  (1883)  ;  (1871)  ;  s.r.  .s((/.  nom.  Kuloff's  Case,  1 1 
s.c.  49  Am.  Rep.  188;  King  v.  State,     Abb.  (N.  Y.)  Pr.  N.  S.  245  (1871). 

13  Tex.  App.  277  (1883).  e  gee  1  Thompson  on  Trials,  §  885 

2  Drake  v.  State,  75  Ga.  413  (1885)  ;     et  sp(j.  ;  10  Cent.  L.  J.  436. 

State  V.  Stair,  87  Mo.  208  (1885)  ;  s.c.  "  See  People  v.  Bush,  68  Cal.  623 

56  Am.  Rep.  449.  (1886);  s.c.  7  Cr.  L.  Mag.  735;   10 

The  fact  that  such  garments  can-  Pac.  Rep.  169;   Bostock  v.   State,  61 

not  be  filed  with  the  bill  of  exceptions  Ga.  035  (1878);  State  w.  Moran,  15 

is    no    reason    for    excluding    them.  Orcg.  262   (1887)  ;   State  v.  Ah   Lee, 

States.  Stair,  87  Mo.  268  (1885);  s.c.  8  Greg.  214  (1880);   Sasse  v.  State, 

56  Am.  Rep.  449.  68  Wis.  530   (1887)  ;   s.c.  32  N.  W. 

3  Drake  v.  State,  75  Ga.  413  (1885).  Rep.  849. 

*  Thomas    v.    State,    67    Ga.    460  «  Chute    v.    State,   19    Minn.    271 

(1881)  ;  Commonwealth  v.  Sturtivant,  (1872)  ;   Sasse  v.  State,  68  Wis.  530 

117   Mass.   122   (1875);   s.c.   19  Am.  (1887);  s.c.  32  N.  W.  Rep.  849. 
Rep.  401. 


SEC.  491.]  EVroENCE COMPETENCE.  535 

The  current  of  authority  is  to  the  effect  that  the  prisoner 
must  be  present  on  such  a  view,  because  were  it  had  in  his 
absence  this  would  be  a  violation  of  the  prisoner's  constitu- 
tional right  and  privilege  to  be  confronted  with  the  witnesses 
against  him.i  Some  of  the  cases  go  to  the  extent  of  holding 
that  the  constitutional  right  to  be  present  is  one  which  the 
prisoner  cannot  waive  in  a  murder  trial,^  but  this  position  is 
variously  combated  by  Judge  Brewer  in  the  case  of  State  v. 
Adams,=^  and  it  is  held  by  the  Supreme  Court  of  Oregon,  that 
the  defendant  waives  his  right  to  be  present  by  failure  to 
make  application  to  the  court  for  leave  to  accompany  the 
jury.* 

Sec.  490.  Presumptions  and  burden  of  proof  —  As  to 
the  corpus  delicti.  —  The  burden  of  proof  is  on  the  prosecu- 
tion to  establish  the  corpus  delicti  as  well  as  all  other  mate- 
rial alleofations  in  the  indictment,  to  the  satisfaction  of  the 
jury,  before  a  conviction  for  a  homicide  can  be  justified ;  ^  but 
it  has  been  held  that  where  the  prosecution  shows  j)rima  facie 
the  corpus  delicti,  the  defendant  has  the  burden  to  show  that 
the  person  for  whose  killing  he  is  upon  trial  is  still  alive,  if 
he  sets  up  that  claim.^ 

Sec.  491.  Same  —  As  to  malice.'  —  Where  the  proof 
shows  an  unlawful  killing,  by  means  calculated  to  produce 
death,  and  no  circumstances  in  mitigation  appear,  malice  is 
presumed,  and  the  defendant  has  the  burden  of  proof  to  show 
that  the  killing  was  not  malicious ;  but  where  mitigating  cir- 
cumstances are  shown  by  the  evidence  of  the  prosecution, 
they  rebut  the  presumption  equally  as  if  shown  by  the  de- 
fendant.s     Where  the  courts  hold  that  malpractice  of  a  sur- 

1  Benton  v.  State,  30  Ark.  328,  348  ^  See  State  v.  Taylor,  1  Houst.  Cr. 
(1875);  People  v.  Bush,  71  Cal.  602     Cas.  (Del.)  43(5  (1874). 

(1887);    s.c.  7   Cr.  L.   Mag.  735;    10  e  pahnestock  v.  State,  23  Lul.  231 

Pac.  Rep.   109,  overruling  People  i-.  (1804);  State  r.  Vincent,  24  Iowa,  570 

Bonney,  19  Cal.  420  (1861)  ;  State  v.  (1808). 

Bertin',  24  La.  An.  40  (1872)  ;  Carroll  "  As    to     legal     presumptions     of 

V.  State,  5  Neb.  32,  35  (1876).  malice,  see  supra  Cliap.  V. 

2  See  People  v.  Bush,  71  Cal.  002  '^  McDaniel  v.  State,  76  Ala.  1 
(1887)  ;  s.c.  7  Cr.  L.  Mag.  735.  (1884);    Wharton    v.    State,  73    Ala. 

3  20  Kan.  311,  324  (1878).  366  (1882)  ;  People  v.  Bush,  71   Cal. 
*  State    V.    Moran,    15    Oreg.    262     602  (1887) ;   s.c.    12   Pac.    Rep.    781 ; 

(1887);  s.c.  14  Pac.  Rep.  419;  State     People  v.  Raten,  63  Cal.  421  (1883); 
V.  Ah  Lee,  8  Oreg.  214  (1880).  People  v.  Hong  Ah  Duck,  61  Cal.  387 


536 


HOMICIDE. 


[chap.  XXII. 


geon  or  physician  may  be  a  defence  to  an  indictment  for 
murder  partly  caused  by  a  wound  inflicted  with  malicious 
intent,  the  defendant  has  the  burden  to  show  that  the  death 
resulted  from  the  neglect  or  malpractice  of  the  surgeon  or 
physician,  or  from  some  other  cause  than  the  wound.^ 

in  Wharton  v.  State,^  on  trial  of  the  defendant  for  killing 
his  wife,  it  appeared  that  eighteen  months  before  the  killing, 
he  had  said  he  did  not  like  her,  and  would  not  live  with  her, 
and  had  separated  from  her,  but  at  the  time  of  the  killing 
they  had  resumed  their  marital  relations,  the  court  held  that 
there  was  no  presumption  of  want  of  malice  from  this  recon- 
ciliation. 

It  is  frequently  the  case  that  persons  upon  trial  for  liomi- 
cide  are  sought  to  be  charged  with  the  burden  of  proof  in 
the  first  instance,  but  such  a  doctrine  has  no  precedent  nor 


(1882)  ;  rcople  v.  West,  49  Cal.  010 
(1875)  ;  People  v.  Ah  Kong,  41)  Cal. 
7  (1874)  ;  People  r.  Gibson,  17  Cal. 
283  (1861)  ;  People  r.  Arnold,  15  Cal. 
470  (1800)  ;  State  r.  West,  1  Iloust. 
Cr.  Cas.  (Del.)  :]71  (1873)  ;  Dixon  v. 
State,  13  Fla.  030  (1870)  ;  Gladden  v. 
State,  13  Fla.  023  (1870)  ;  Reid  v. 
State,  50  Ga.  550  (1874)  ;  Mnrpliy  v. 
People,  37  111.  447  (1805)  ;  State  v. 
Vincent,  24  Iowa,  570  (1808)  ;  8.c.  95 
Am.  Dec.  753 ;  State  v.  Gilliok,  7  Iowa, 
287  (1858)  ;  Tweedy  v.  State,  5  Iowa, 
433  (1857);  State  ?\  Briscoe,  30  La. 
An.,  pt.  I,  433  (1878)  ;  State  v.  Knight, 
43  Me.  11  (1857)  ;  Commonwealth  v. 
Wehster,m  Mass.  (5  Cush.)  290  (1850); 
s.c.  52  Am.  Dec.  711 ;  Barciis  v.  State, 
49  Miss.  17  (1873)  ;  s.c.  19  Am.  Rep. 
1  ;  1  Am.  Cr.  Rep.  240;  Green  c.  State, 
28  Miss.  087  (1855)  ;  State  r.  Alex- 
ander, GO  Mo.  148  (1877)  ;  Territory 
V.  McAndrews,  3  Mont.  Tr.  158  (1878); 
People  V.  McCarthy,  110  N.  Y.  309 
(1888)  ;  s.c.  18  N.  E.  Rep.  128  ;  Peoi^le 
V.  ScJiri/ver,  42  N.  Y.  1  (1870)  ;  s.c.  1 
Am.  Rep.  480;  Patterson  c  People, 
40  Barb.  (N.  Y.)  025  (1800)  ;  State  r. 
Byers,  100  N.  C.  512  (1888)  ;  s.c.  0 
S.  E.  Rep.  420;  State  r.  Jones,  98 
N.  C.  051  (1887);  s.c.  3  S.  E.  Rep. 
507;  sS'tate  v.  Thomas,  98  X.  C.  .599 
(1887)  ;  s.c.  10  Cr.  L.  Mag.  413 ;  2  Am. 


St.  Rep.  351 ;  State  v.  vSmith,  77  N.  C. 
488  (1877) ;  State  v.  Willis,  03  N.  C. 
20  (1808)  ;  State  v.  Johnson,  3  Jones 
(N.  C.)  L.  200  (1855)  ;  Commonwealth 
V.  Drum,  58  Pa.  St.  9  (1808)  ;  Perry  i: 
State,  44  Tex.  473  (1870)  ;  Murray  v. 
State,  1  Tex.  App.  417  (1877) ;  Hill  v. 
Commonwealth,  2  Gratt.  (Va.)  594 
(1845).  See  Brown  ;.•.  State,  74  Ala. 
478  (1883)  ;  McGinnis  v.  State,  31  Ga. 
230  (1800)  ;  State  v.  Dillon,  74  Iowa, 
053  (1888);  s.c.  38  N.  W.  Rep.  525; 
Hawtliorne  i-.  State,  58  Miss.  778 
(1881);  Hogan  v.  State,  30  Wis.  220 
(1874);  Richardson  v.  State,  9  Tex. 
App.  012  (1881)  ;  United  States  v. 
Mingo,  2  Curt.  C.  C.  1  (1854).  Com- 
pare Commonwealth  r.  Hawkins,  09 
Mass.  (3  Gray)  403  (1855)  ;  People  v. 
Coughlin,  05  Mich.  704  (1887);  s.c. 
32  N.  W.  Rep.  905;  Maher  v.  People, 
10  Mich.  212  (1802)  ;  Beers  v.  State, 
24  Neb.  014  (1888)  ;  s.c.  39  N.  W.  Rep. 
790;  Goodall  r.  State,  1  Oreg.  333 
(1801)  ;  s.c.  80  Am.  Dec.  390. 

"  Heat  and  passion  "  is  a  fact  to  be 
proved,  like  any  other,  and  is  not  to 
be  presumed  from  good  character,  in 
the  absence  of  direct  evidence.  Hogan 
V.  State,  30  Wis.  220  (1874). 

1  State  ?'.  Briscoe,  30  La.  An.,  pt.  I, 
433  (1878). 

■^  73  Ala.  300  (1882). 


SEC.  492.]  EVIDENCE COMPETENCE.  537 

fouiulation  in  authority ;  it  should  always  be  eleaii}'  under- 
stood that  the  prosecution  has  the  burden  of  proof  upon  the 
whole  case  taken  together,  and  only  when  it  has  proved  facts 
relating  to  a  specific  element  of  the  crime  charged,  which 
raise  a  jyrijnafacie  presumption  of  malice  aforethought,  is  the 
burden  cast  upon  defendant  in  any  respect.  The  defendant's 
burden  of  proof  can  only  be  in  rebuttal  of  something  shown 
by  the  prosecution.^ 

The  supreme  court  of  Michigan  say,  in  jNIaher  v.  People,^ 
that,  under  a  charge  of  murder,  the  presumption  of  the  defend- 
ant's innocence  applies  equally  to  the  malicious  intent  neces- 
sary to  be  shown,  and  to  the  killing ;  and  the  onus  proba7id{, 
as  to  each,  is  with  the  prosecutor.  An  instruction  in  such  a 
case  that  the  law  implies  malice  in  case  of  unlawful  killing 
by  means  calculated  to  produce  death,  and  the  burden  of 
proof  is  on  the  defendant,  if  he  would  reduce  the  offence  to 
a  lower  grade  than  murder  in  the  second  degree,  is  erroneous. 
The  law  never  casts  the  burden  of  proof  on  the  accused  in 
such  a  sense  as  to  relieve  the  state  from  proving  the  facts 
constituting  any  degree  of  crime.^ 

Sec.  492.  Same  —  As  to  insanity.  —  Every  person  charged 
with  the  commission  of  a  homicide  is  always  presumed  to  be 
sane  and  of  sound  mind  until  the  contrary  is  shown  ;  and 
while  some  courts  are  inclined  to  regard  the  question  as  yet 
unsettled,  or  have  decided  according  to  the  opposite  vicAv,* 

1  Brown  v.  State,  74  Ala.  478  (188:]);  (1850)  ;  Cliase  v.  People,  40  111.  352 
Maherr.  People,  10  Mich.  212  (18(32);  (1800);  Hopps  v.  Piopic,  31  111.  385 
Perry  v.  State,  44  Tex.  473  (1870).  (1803);  .s.c.  83  Am.  Deo.  231;  2  Cr. 

2  10  Micii.  212  (1802).  Def.  444;   Guetig  v.   State,  00  Ind.  !)4 
sPerryr.  State,  44  Tex.  473  (1870);     (1879);    s.c.  32  Am.  Rep.    90;  2  Cr. 

Murray    v.    State,   1    Tex.    App.    417  Def.  455;  State  v.  Crawford,  11  Kan. 

(1877).  32  (1873)  ;  s.c.  2  Cr.  Def.  459;  People 

A  charge  that  to  make  out  a  case  v.  Garhult,  17  Mlcii.  9  (1808)  ;  s.c.  97 

of    justifiable    self-defence,    the    evi-  Am.  Dec.  102;  2  Cr.  Def.  403;   Cmi- 

dence  must  show  the  difficulty  was  not  vinrjham  v.  State,  50  Miss.  209  (1879)  ; 

j)rovoked  or  encouraged   by   the  de-  s.c.   31    Am.    Rep.    300;    2   Cr.    Def. 

fendant,' is  erroneous  in  misplacing  the  470;    Wright   v.   People,  4  Neb.   407 

burden  of  proof,  sucli  provocation  or  (1870);  s.c.  2  Cr.  Def.  477;  State  v. 

encouragement   not  being  presumed,  Jones,  50   N.    H.   309   (1871)  ;   s.c.    9 

and  disproof  not  being  required,  except  Am.  Rep.  242;   17  N.  W.    Rep.  911; 

in  rebuttal  of  the  evidence  thereof  in-  2  Cr.   Def.   04;    1    Gr.  Cr.  Rep.   378, 

troduced  by  the  state.    Brown  r.  State,  note;    State    v.    Bartlett,    43    N.    H. 

74  Ala.  478  (1883).  224  (1801)  ;  s.c.  80  Am.  Dec.  154;  2 

*  See  Ogletree  v.  State,  28  Ala.  701  Cr.  Def.  480;  O'Connell  r.  People,  87 


538 


HOMICIDE. 


[chap.  XXII. 


the  clear  weight  of  authority  is  to  the  effect  that  when  in- 
sanity is  set  up  by  the  defendant  as  a  confession  and  avoid- 
ance, he  has  the  burden  to  prove  it.^  But  there  are  excep- 
tions to  this  rule,  as,  for  instance,  where  the  defendant  is  a 
deaf-mute,  the  prosecution  then  having  the  burden  to  prove 
his  sanity  or  soundness  of  mind.^ 


N.  Y.  377  (1882)  ;  s.c.  41  Am.  Rep. 
:]70;  2  Cr.  Def.  499;  People  v.  Mc- 
Cann,  10  N.  Y.  58  (1857)  ;  s.c.  (39  Am. 
Dec.  042;  2  Cr.  Def.  490;  Dove  r. 
State,  3  Heisk.  (Tenn.)  348  (1872)  ; 
s.c.  2  Cr.  Def.  502  ;  1  Gr.  Cr.  Rep.  700. 

1  Boswell  V.  State,  63  Ala.  307 
(1879)  ;  s.c.  35  Am.  Rep.  20;  2  Cr. 
Def.  352;  2  Cr.  L.  Mag.  32;  State  v. 
Brinyea,  5  Ala.  244  (1843)  ;  s.c.  2  Cr. 
Def.  349;  State  v.  Marler,  2  Ala.  43 
(1841)  ;  s.c.  2  Cr.  Def.  340;  30  Am. 
Dec.  398;  Casat  v.  State,  40  Ark.  511 
(1883)  ;  McKenzie  v.  State,  20  Ark. 
334  (1870)  ;  s.c.  Law.  Insan.  533; 
People  V.  McDonell,  47  Cal.  134  (1873); 
s.c.  2  Gr.  Cr.  Rep.  441  ;  People  v. 
Myers,  20  Cal.  518  (1862)  ;  State  v. 
Hoyt,  40  Conn.  330  (1878);  State  v. 
Pratt,  1  Houst.  Cr.  Cas.  (Del.)  249 
(1807)  ;  s.c.  2  Cr.  Def.  327;  State  v. 
Danby,  1  Houst.  Cr.  Cas.  (Del.)  1G7 
(1864)  ;  s.c.  2  Cr.  Def.  331;  State  v. 
Hurley,  1  Houst.  Cr.  Cas.  (Del.)  28 
(1858)  ;  McDougal  v.  State,  88  Ind. 
24  (1882);  s.c.  4  Cr.  L.  Mag.  509; 
State  V.  Felter,  32  Iowa,  49  (1871) ; 
s.c.  2  Cr.  Def.  371 ;  Kriel  v.  Conmion- 
wealth,  5  Bush  (Ky.)  362  (1869); 
s.c.  2  Cr.  Def.  379;  Smith  v.  Com- 
monwealth, 1  Duv.  (Ky.)  224  (1804); 
s.c.  Law.  Insan.  669 ;  Graham  v.  Com- 
monwealth, 16  B.  Mon.  (Ky.)  587 
(1855);  s.c.  2  Cr.  Def.  373;  State  v. 
Lawrence,  57  Me.  574  (1870) ;  s.c.  2 
Cr.  Def.  38()-;  Commonwealth  v.  Eddy, 
73  Mass.  (7  Gray)  583  (1850)  ;  Com- 
monineah}i  v.  liogers,  48  Mass.  (7  Mete.) 
500  (1844);  s!c.  41  Am.  Dec.  458; 
Law.  Insan.  158;  People  v.  Finley,  .38 
Mich.  482  (1878)  ;  State  v.  Redemeier, 
71  Mo.  173  (1879)  ;  s.c.  .36  Am.  Rep. 
402;   1  Cr.  L.  Mag.  456;  8  Mo.  App. 


1  ;  2  Cr.  Def.  424 ;  State  v.  Smith,  53 
Mo.  207  (1873);  State  v.  Hundley, 
46  Mo.  414  (1870)  ;  s.c.  2  Cr.  Def. 
417  ;  State  v.  Klinger,  43  Mo.  127 
(1868);  s.c.  2  Cr.  Def.  410;  State 
V.  McCoji,  34  Mo.  531  (1804);  s.c. 
86  Am.  Dec.  121;  2  Cr.  Def.  408; 
Baldwin  v.  State,  12  Mo.  223  (1848)  ; 
s.c.  2  Cr.  Def.  395  ;  Graves  v.  State, 
45  N.  J.  L.  (16  Vr.)  347  (1883)  ;  s.c. 
5  Cr.  L.  Mag.  815;  46  Am.  Rep.  778 ; 
4  Am.  Cr.  Rep.  386 ;  State  v.  Spencer, 
21  N.  J.  L.  (1  Zab.)  202   (1840)  ;  s.c. 

2  Cr.  Def.  335;  State  v.  Martin,  3  Cr.  L. 
Mag.  (N.  J.)  44  (1881)  ;  State  v.  Bran- 
don, 8  Jones  (N.  C.)  L.  403  (1862);  s.c. 
Law.  Insan.  144 ;  State  v.  Starling,  6 
Jones  (N.C.)  L.  360  (1859);  Loeffneri'. 
State,  10  Ohio  St.  599  (1857);  s.c.  Law. 
Insan.  432 ;  Coyle  v.  Commonwealth, 
100  Pa.  St.  573  (1882) ;  s.c.  4  Cr. 
L.  Mag.  76;  45  Am.  Rep.  397;  2  Cr. 
Def.  441  ;  Ortwein  v.  Commonwealth, 
76  Pa.  St.  414  (1874)  ;  s.c.  18  Am. 
Rep.  420 ;  1  Am.  Cr.  Rep.  297 ;  Law. 
Insan.  438;   Commonwealth  v.  Lynch, 

3  Pittsb.  (Pa.)  412  (1872);  State  v. 
Coleman,  20  S.  C.  441  (1883)  ;  State 
V.  Stark,  1  Strobh.  (S.  C.)  L.  479 
(1847)  ;  Rather  v.  State,  25  Tex.  App. 
623  (1888);  s.c.  9  S.  W.  Rep.  70; 
Boswell  V.  Commonwealth,  20  Gratt. 
(Va.)  860  (1871)  ;  s.c.  Law.  Insan. 
592;  United  States  i'.  Lawrence,  4  Cr. 
C.  C.  514  (1835);  United  States  i;. 
McGlue,  1  Curt.  C.  C.  1  (1851); 
Attorney-General  v.  Parnther,  3  Bro. 
Ch.  441  (1792);  Reg.  v.  Stokes,  .3 
Car.  &  K.  189  (1848);  McNaghten's 
Case,  10  CI.  &  F.  200  (1843);  Reg.  v. 
Lay  ton,  4  Cox  C.  C.  149  (1849). 

2  State  V.  Draper,  1  Houst.  Cr.  Cas. 
(Del.)  291  (1808). 


CHAPTER   XXIII. 

EVIDENCE — WEIGHT    AND    SUFFICIENCY. 

Sec.  49o.  The  corpus  i/ellcli. 

Sec.  494.  Same  —  New  York  rule. 

Sec.  495.  Same  —  'Proving  alias  dictus. 

Sec.  496.  Proviiific  tlie  venue. 

Sec.  497.  Same- — ^ Doctrine  of  reasonable  doubt. 

Sec.  498.  Confessions. 

Sec.  499.  Same  —  Nature  and  effect. 

Sec.  500.  Same  —  Must  be  free  and  voluntary. 

Sec.  501.  Same  —  Inducement  to  conf(5ssion  —  Person  in  authority. 

Sec."  502.  Same  —  Confessions  made  while  under  arrest. 

Sec.  503.  Same  —  Confessions  made  through  fear  of  mob  violence. 

Sec.  504.  Same  —  Confessions  procured  by  artifice  and  deception. 

Sec.  505.  Same  —  Confessions  to  clerg^ymen. 

Sec.  506.  Same  —  Confessions  obtained  by  questioning. 

Sec.  507.  Same  —  Confessions  during  examination. 

Sec.  508.  Same  —  Confessions  inferred  when. 

Sec.  509.  Same  —  The  whole  confession  must  be  taken  together. 

Sec.  510.  Testimony  of  accomplice. 

Sec.  511.  Proving  self-defence. 

Sec.  512.  Proving  alibi. 

Sec.  513.  Proving  insanity. 

Sec.  514.  Same  —  Sufficiency  of  evidence. 

Sec.  493.  The  corpus  delicti.  —  The  corpus  delicti  con- 
sists of  two  fundamental  facts :  first,  the  death,  and  second, 
the  existence  of  the  criminal  agency  as  the  cause  thereof. 
The  former  must  be  shown,  either  by  direct  proof,^  or  by 
presumptive  evidence  of  the  strongest  kind,  which  is  clearly 
satisfactory  to  the  jury,  and  convinces  them  beyond  a  reason- 

1  McCulloch   V.    State,  48   Ind.    109  Rep.  53;  27    N.  Y.  Week.  Dig.  169; 

(1874);    s.c.    1    Am.    Cr.    Kep.    318;  People  r.  Bennett,  49  N.  Y.  137  (1872); 

People    V.   Deacons,    109   N.    Y.    374  Euloff  v.  People,  18  N.  Y.  179  (1878); 

(1888);  s.c.  10  N.  E.  Kep.  676  ;  People  Walker  v.  State,  14    Tex.    App.   609 

V.  Palmer,  109  N.  Y.  110  (1888)  ;  s.c,  (1884^  ;  Smith  v.  Commonwealth,  21 

16  N.  E.  Rep.  529:  People  v.  Beck-  Gratt.  (Va.)  809  (1871). 
with,  108  N.  Y.  67  (1888);  s.c.  15  N.  E. 

539 


540 


HOMICIDE. 


[cHAr.  xxrir. 


able  doubt.i  But  the  criminal  agency  may  be  established  by 
circumstantial  evidence,  or  by  presumptive  reasoning  upon 
the  facts  and  circumstances  of  the  case.^  The  general  rule, 
however,  is  that  the  corpus  delicti^  taken  as  a  whole,  may  be 
shown  by  any  evidence  which  satisfies  the  jury  beyond  a 
reasonable  doubt,  whether  it  be  direct  or  circumstantial ;  ^ 
but  this  is  qualified  and  limited  by  the  rule  tliat  the  defend- 
ant's confession  taken  alone  and  without  corroborating  proof 
of  the  corpus  delicti  is  not  sufiicient  to  support  a  conviction.^ 
This  general  proof,  however,  need  not  necessarily  be  direct. 
Thus  proof  that  the  deceased  was  unlawfully  killed,  is  suf- 
ficient corroboration  of  the  confession  of  the  defendant,  that 
he  was  present,  aiding  and  abetting,  to  authorize  his  convic- 
tion.* In  Paul  V.  State  ^  on  the  trial  of  a  youth  for  the  murder 
of  a  girl  nine  years  old,  proof  that  he  confessed  that  he 
switched  her  near  a  spring  for  having  told  a  lie  on  him ;  that 
she  ran  and  cursed  him,  and  that  he  got  a  rail  and  knocked 
her  on  the  head,  and  she  died,  was  confirmed  by  evidence 
that  she  was  found  near  the  spring  with  her  skull  fractured, 
and  near  it  certain  frizzled  switches  and  a  broken  lail  with 
blood  thereon,  and  the  verdict  of  guilty  should  not  be  dis- 
turbed by  the  appellate  court. 


I 


1  Pitts  V.  State,  43  Miss.  472  (1870). 

2  People  V.  Alviso,  55  Cal.  280 
(1880)  ;  Anderson  v.  State,  20  Fla. 
381  (1883)  ;  State  v.  Keeler,  28  Iowa, 
551  (1870)  ;  Johnson  v.  Commonwealth, 
81  Ivy.  325  (1888)  ;  s.c.  4  Cr.  L.  Mag. 
{•02 ;  State  v.  Williams,  7  Jones 
(N.  C.)  L.  446  (1860)  ;  s.c.  78  Am. 
Dec.  248  ;  Timnierman  v.  Territon', 
3  Wash.  Tr.  445  (1888)  ;  s.c.  17  Pae. 
Rep.  625  ;  Taylor  v.  State,  35  Tex.  97 
(1871)  ;  United  States  v.  Williams,  1 
Cliff.  C.  C.  5  (1858).  See  Cavaness 
V.  State,  48  Ark.  881  (1884)  ;  MrCnl- 
loch  V.  State,  48  Ind.  109  (1874)  ;  s.c. 
1  Am.  Cr.  Rep.  318  ;  Stocking  v.  State, 
7  Ind.  326  (1855)  ;  Pitts  v.  State, 
43  Miss.  472  (1870)  ;  Liglitfoot  r. 
State,  20  Tex.  App.  77  (1886)  ;  Love- 
lady  r.  State,  17  Tex.  App.  28(5  (1885)  ; 
s.c.  14  Tex.  App.  545  (1884)  ;  Robin- 
son V.  State,  16  Tex.  App.  847  (1885) ; 
Spear  v.  State,  16  Tex.  App.  98  (1885)  ; 


Walker  v.  State,  14  Tex.  App.  609 
(1884)  ;  Smith  v.  Commonwealth,  21 
Gratt.  (Va.)  809  (1871).  Compare 
People  V.  Palmer,  109  N.  Y.  110 
(1888);  s.c.  16  N.  E.  Rep.  529;  Peo- 
ple i^.  Beckwith,  108  N.  Y.  67  (1888)  ; 
15  N.  E.  Rep.  53  ;  People  v.  Bennett, 
49  N.  Y.  137  (1872)  ;  Ruloff  v.  People, 
18  N.  Y.  179  (1878). 

3  Paul  V.  State,  65  Ga.  152  (1880)  ; 
Daniel  v.  State,  63  Ga.  339  (1879)  ; 
Holsenbake  v.  State,  45  Ga.  43 
(1872)  ;  South  v.  People,  98  111.  261 
(1881;  ;  People  v.  Lane,  49  Mich.  340 
(1882)  ;  s.c.  13  N.  W.  Rep.  622  ;  State 
V.  Patterson,  73  Mo.  695  (1881) ;  Peo- 
ple V.  Deacons,  109  N.  Y.  874  (1888)  ; 
s.c.  16  N.  E.  Rep.  676  ;  Smith  v.  Com- 
monwealth,21  Gratt.  (Va.)  809  (1871); 
United  States  v.  Williams,  1  Cliff.  C.  C. 
5  (1858). 

*  Daniel  v.  State,  63  Ga.  339  (1879). 

^  65  Ga.  152  (1880). 


SEC.  494.]  WEIGHT    AND   SUFFICIENCY.  54:1 

In  ^IcCulloch  V.  State  ^  on  a  trial  for  murder,  evidence 
was  efiven  of  the  finding  of  the  skeleton  of  a  human  beinw  of 
the  sex  of  the  person  charged  to  have  been  murdered,  and 
corresponding  to  his  size,  and  this  was  held  sufficient  evidence 
of  the  corpus  delicti  to  justify  the  admission  of  circumstantial 
evidence  to  identify  the  skeleton  as  that  of  the  murdered 
party,  as  well  as  to  sliow  the  cause  and  manner  of  the  death. 
But  where  it  was  not  proved  that  A  was  dead,  oidy  that  he 
had  disappeared,  and  a  body  was  found  in  a  river  more  than 
six  hundred  miles  below  the  spot  where  the  prosecution 
claimed  that  A  was  killed,  but  the  body  was  not  identified 
as  A's,  the  court  held  that,  notwithstanding  the  existence  of 
circumstantial  evidence  of  the  defendant's  guilt,  the  verdict 
should  be  set  aside.^ 

Sec.  494.  Same  —  New  York  r.ule.  —  It  seems  that  the 
provisions  of  the  New  York  Penal  Code,^  prohibiting  a  con- 
viction "  unless  the  death  of  the  person  alleged  to  have  been 
killed,  and  the  fact  of  the  killing  by  the  defendants  as  alleged 
are  each  established  as  independent  facts,  the  former  by 
direct  proof,  and  the  latter  beyond  a  reasonable  doubt,"  does 
not  exclude  evidence  of  points  and  features  of  resemblance 
between  the  mutilated  body  and  tlie  person  charged  to  have 
been  killed,  nor  does  it  exclude  proof  of  circumstances  tend- 
ing to  establish  identity.*  And  under  this  section  it  seems 
that  the  accused  may  be  convicted  of  murder  without  direct 
proof  of  the  identity  of  the  victim.''  Under  the  New  York 
Code  of  Criminal  Procedure,*^  providing  that  the  confession 
of  a  defendant  sliall  not  bs  sufficient  without  additional  proof 
that  the  crime  charged  has  been  committed,  the  finding  of 
the  dead  body  of  a  murdered  man,  with  the  unmistakable 
marks  of  a  murder  committed,  is  sufficient  additional  proof 
to  warrant  the  conviction  of  a  defendant  on  his  own  confes- 
sion." 

1  48  Ind.  109  (1874)  ;  s.c.  1  Am.  (1888)  ;  s.c.  15  N.  E.  Rep.  53 ;  27 
Cr.  Rep.  318.  N.  Y.  Week.  Dig.  109. 

2  Walker  v.  State,  14  Tex.  App.  °  People  v.  Palmer,  109  N.  Y.  110 
609  (1884).  (1888)  ;  s.c.  10  N.  E.  Rep.  529. 

3  N.    Y.     Pen.     Code,     §    181,    as  «  n.  Y.  Code  Cr.  Proc.  §  395. 
amended,  1882.  "  People  ?•.  Deacons,  109  N.  Y.  374 

•t  People  V.  Beckwith,  108  N.  Y.  07     (1888)  ;  s.c.  10  N.  E.  Rep.  070. 


542  HOMICIDE.  [chap.  XXIII. 

Sec.  495.  Same  —  Proving  alias  dictus.  —  Where  two 
or  more  names  are  laid  in  an  indictment  under  an  alias 
dictus,  it  is  not  necessary  to  prove  them  all.  Thus  where  the 
prisoner,  an  Indian,  was  indicted  for  the  murder  of  Agnes 
Jacobs,  otherwise  called  Konwaker  Karonhienaw^ita,  and  at 
the  trial  evidence  was  given  identifying  the  deceased  as  an 
Indian  woman,  known  by  the  name  laid  in  the  indictment, 
but  there  was  no  evidence  that  she  was  known  by  the  name 
of  Agnes  Jacobs,  it  was  held,  affirming  the  judgment  of  the 
Court  of  Crown  Cases  Reserved  for  the  Province  of  Quebec, 
that  proof  of  the  Indian  name  was  sufficient  to  justify  a  con- 
viction of  the  prisoner  of  manslaughter.^ 

Sec.  496.  Proving'  the  venue.  —  It  is  sufficient  if  the 
venue  be  proved  in  any  manner  which  satisfies  the  jury  that 
the  homicide  was  committed  within  the  jurisdiction  of  the 
court.  It  has  been  held  that  it  need  not  be  proved  affirma- 
tively ;  but  that  if  the  witnesses  describe  the  place  sufficiently 
for  the  jury  to  reasonably  infer  that  it  was  within  the  proper 
locality,  it  is  sufficient.^  It  may- be  established  by  either 
circumstantial  evidence,^  or  by  the  testimony  of  one  witness, 
when  not  positively  contradicted,*  or  by  the  dying  declara- 
tions of  the  deceased.^ 

Where  the  evidence  shows  that  the  defendant,  in  company 
with  the  deceased,  on  the  evening  of  the  alleged  murder,  left 
one  county,  going  towards  an  adjoining  county,  in  wliich  the 
body  of  the  deceased  was  found,  the  venue  of  the  killing  w^as 

^  Queen  v.  Jacobs   (Can.  S.  C.)   25  N.  W.  Rep.  911.      Compare   Franklin 

Can.  L.  J.  801)  (1880)  ;  distinguishing  v.  State,  5  Baxt.  (Tenn!)  Olo  (1875). 
Reg.  V.  Frost   (Dears.  C.  B.  474)  25  •♦  Speight    v.    State,    80    Ga.    512 

Can.  L.  J.  310  (1889).  (1888)  ;    s.c.  5  S.  E.  Rep.  500.     See 

2  See  Andrews  v.  State,  21  Fla.  598  Laydon  v.  State,  52  Ind.  459  (187(5). 

(1885)  ;  State  v.  Dent,  1  Ricli  (S.  C.)  On  the  trial  of  an  indictment  for  niur- 

L.  4(59  (1845).     Compavp  Franklin  v.  der,    in    the    Fountain    circuit    court. 

State,  5  Baxt.  (Tenn.)  ()i:J  (1875).  a  witness  for  tiie  state,  who  testified  to 

^  State  V.  We.s/,  69  Mo.  401  (1879);  the  whole  transaction,  having  been 
s.c.  33  Am.  Rep.  50(5.  See  People  r.  present  and  having  seen  it  all,  con- 
Williams,  18  Cal.  187  (18(51);  Dumas  eluded  his  evidence  by  saying,  "  Tn 
V.  State,  02  Ga.  58  (1878)  ;  Mitchum  Fountain  county,  Indiana."  The  ap- 
V.  State,  11  Ga.  615  (1852)  ;  Beavers  j)ellate  court  lield  that  the  place  of 
V.  State,  58  Ind.  530  (1877)  ;  Com-  the  killing  was  proved.  Laydon  v. 
monwealth  v.  Costlcy,  118  Mass.  1  State,  52  Ind.  459  (1876). 
(1875)  ;  Marion  v.  State,  20  Neb.  233  ^  Bryant  v.  State,  80  Ga.  273  (1887); 
(188(3);    s.c.   57    Am.    Rep.   825;    29  s.c.  4  S.  E.  Rep.  853. 


SEC. 


498.] 


WEIGHT   AND    SUFFICIENCY. 


543 


sufficiently  shown  to  have  been  in  the  hitter.^  And  proof 
that  the  mortal  wound  was  given  after  the  deceased  had  left 
one  point  late  in  the  afternoon,  and  arrived  at  another  in  the 
same  county,  eight  miles  distant,  early  in  the  night,  fixes  the 
venue  with  sufficient  certainty .^ 

Proof  that  a  body,  with  marks  of  injuries  sufficient  to  cause 
death,  was  found  in  a  river  in  the  heart  of  a  county,  in  a  con- 
dition showing  that  he  must  have  been  thrown  there  by  the 
hand  of  a  man,  and  not  drifted  there  by  the  current  of  the 
stream,  is  sufficient  to  warrant  a  finding  that  the  homicide 
was  committed  in  that  count3^^  And  in  a  case  where 
the  only  proof  offered  that  the  homicide  was  committed  in  the 
county  laid,  was  the  statement  of  the  coroner  who  held  the 
inquest,  that  the  body  was  found  in  such  county,  it  would 
seem  that  the  venue  is  sufficiently  proven.* 

Sec.  497.    Same  —  Doctrine  of  reasonable  doubt.  —  The 

doctrine  of  reasonable  doubt  does  not  apply  to  proof  of  venue. 
If  the  evidence  raises  a  violent  presumption  that  the  offence 
was  committed  in  the  county,  or  if  the  jury  are  reasonably 
satisfied  that  such  is  the  case,  it  is  sufficient.^ 

Sec,  498.  Confessions.  —  Where  the  corpus  delicti  has 
established  bv  other  or  additional  evidence,  the  confessions  of 


1  Beavers  i\  State,  58  Ind.  MO 
(1877). 

2  Dumas  v.  State,  62  Ga.  58  (1878). 

On  an  indictment  for  murder  be- 
fore the  superior  court  in  tlie  county 
of  Stewart,  the  proof  was  that  the 
crime  was  committed  in  the  house 
of  the  witness  at  Florence,  Stewart 
county  ;  and  it  was  lield  that  the  proof 
was  sufficient  tliat  the  crime  was  com- 
mitted within  the  jurisdiction  of  the 
court.  Mitchum  v.  State,  11  Ga.  615 
(1852). 

^  Commonwealth  v.  Costley,  118 
Mass.  1  (1875). 

^  People  V.  Williams,  18  Cal.  187 
(1861). 

In  Marion  v.  State,  20  Neb.  23.3 
(1886);  s.c.  57  Am.  Rep.  825;  29 
N.  W.  Rep.  Oil,  at  tlie  trial  of  an  in- 
dictment for  murder,  an  instruction, 
requested  by  the  defendant,  that,  in 
order  to  convict,  it  was  not  sufficient 


for  the  state  to  prove  that  the  body 
of  the  deceased  was  found  in  the 
county  mentioned  in  tlie  indictment 
as  the  place  of  the  killing,  but  it  must 
be  proved  beyond  a  reasonable  doubt 
that  the  deceased  was  unlawfully 
killed  by  the  defendant  in  such 
county,  was  given,  with  the  following 
addition  by  the  court:  "but  the  place 
where  the  remains  were  found,  if 
found  at  all,  may  be  taken  into  con- 
sideration, together  with  all  the  other 
evidence,  in  fixing  the  locality  of  the 
homicide,  if  there  was  a  homicide." 
The  appellate  court  held  that  such  ad- 
dition was  properly  made  ;  and  that  it 
was  entirely  competent  for  the  jury 
to  take  into  consideration  all  the  cir- 
cumstances proven  as  to  the  discovery 
of  the  body,  both  as  to  the  time  and 
place  of  the  alleged  killing. 

5  Andrews    i-.    State,   21    Fla.   598 
(1885). 


54-i 


HOMICIDE. 


[chap.  XXIII. 


the  prisoner,  if  made  freely  or  voluntarily,  and  not  induced 
by  fear  or  compulsion  or  promise  of  favor,  may  l)e  alone 
sufficient  to  sustain  a  conviction  for  the  homicide,  when 
satisfactorily  proved.^  The  ground  on  which  such  confessions 
are  received,  is  the  presumption  that  a  person  will  not  make 
an  untrue  statement  against  his  own  interest.^ 

Regarding  the  value  of  or  credit  to  be  given  to  voluntary  con- 
fessions, much  difference  of  opinion  exists.  Some  of  the  cases 
consider  it  as  forming  the  highest  and  most  satisfactory 
evidence  of  guilt  r*^  while  others  hold  that  hasty  confessions 
made   to  persons  having  no  authority  to  examine,  are  the 


1  Mose  V.  State,  36  Ala.  211  (1860)  ; 
Ruberts  v.  Commonvvoaltli,  7  S.  W. 
Rep.  (Ky.)  401  (1888);  State  v. 
Walker,  <J8  Mo.  95  (1888);  s.c.  9 
S.  W.  Rep.  046.  See  Andrews  r.  Peo- 
ple, 117  111.  195  (1886);  s.c.  7  N.  E. 
Rep.  265;  State  v.  Brown,  48  Iowa, 
382  (1878) ;  Comnionwealtli  v.  San- 
born, 116  Mass.  61  (1874);  People  v. 
Druse,  103  N.  Y.  655  (1880)  ;  s.c.  8 
N.  E.  Rep.  733;  State  v.  Suggs,  89 
N.  C.  527  (1883)  ;  Adams  r.  Utley, 
87  N.  C.  356  (1882);  State  v.  Eflrr, 
85  N.  C.  585  (1881)  ;  Hopt  v.  People 
of  Utab,  110  U.  S.  74  (1884)  ;  bk.  28 
L.  ed.  262. 

Wbere  tbe  defendant  swore  that 
he  killed  tbe  man,  tbe  court  held,  that 
it  having  been  shown  outside  of  the 
defendant's  statements  that  tbe  de- 
ceased had  been  killed,  and  the  de- 
fendant having  admitted  in  open  court 
that  he  killed  him,  it  was  proper  to 
refuse  to  instruct  tbe  jury,  under 
Kentucky  Criminal  Code,  §  240,  that 
a  defendant's  confession,  unless  made 
in  open  court,  will  not  warrant  a  con- 
viction, unless  accompanied  witii  other 
proof  that  such  an  offence  was  com- 
mitted. Ruberts  ?•.  Commonwealth 
(Ky.),  7  S.  W.  Hep.  401  (1888). 

There  being  indubitable  evidence 
of  the  corpus  delicti,  and  also  evidence 
corroborative  of  the  inculpatory  ad- 
missions of  defendant,  it  is  not  error 
to  refuse  to  instruct  tliat  the  admis- 
sions should  be  received  with  caution. 


and  were  not,  unless  corroborated, 
suffiL'ient  to  warrant  a  conviction ; 
the  jury  having  been  charged  to 
weigh  such  admissions  with  caution, 
considering  tbe  liability  of  the  wit- 
ness to  misunderstand  tbe  defend- 
ant's language.  State  v.  Walker,  98 
Mo.  95  (1888)  ;  s.c.  9  S.  W.  Rep.  647. 

2  Eiland  t-.  State,  52  Ala.  322 
(1875);  Campbell  r.  State,  23  Ala. 
44  (1854);  Morgan  v.  State,  11  Ala. 
289  (1846)  ;  Blackburn  v.  Common- 
wealth, 12  Bush  (Ky.)  187  (1876); 
Commonwealth  v.  Sanborn,  11(5  Mass. 
61  (1874);  Commonwealth  ?•.  Galli- 
gan,  113  Mass.  202  (1873);  Common- 
wealth V.  Kiiapp,  27  Mass.  (10  Pick.) 
477  (1830);  s.c.  20  Am.  Dec.  534; 
Keithler  v.  State,  18  Miss.  (10  Smed. 
&  M.)  192  (1848)  ;  Slate  v.  Guild,  10 
N.  J.  L.  (5  Halst.)  103  (1828)  ;  s.c.  18 
Am.  Dec.  404;  People  v.  Harriden, 
1  Park  Cr.  Cas.  (N.  Y.)  344  (1852)  ; 
People  V.  McFall,  1  Wiieel.  Cr.  Cas. 
(N.  Y.)  108  (1822)  ;  State  v.  Jefferson, 
6  Ircd.  (X.  C.)  L.  305  (1846);  State 
V.  Iluntly,  3  Ired.  (N.  C.)  L.  418 
(1842)  ;  Smitii  v.  Commonwealth,  10 
Gratt.  (Va.)  734  (1853);  1  Greenl. 
Ev.  (14th  ed.)  §  213;  1  Phill.  Ev. 
(9th  ed.)  397  ;  Roscoe's  Cr,  Ev.  (10th 
ed.)  40  ;  AVhart.  Cr.  Ev.  (9th  ed.) 
§  627. 

3  Rc.\'  '•.  Lambe,  2  Leach  C.  C.  554 
(1791)  ;  Re.x.!.'.  Warickshall,  1  Leach 
C.  C.  263  (1783);  1  Gilb.  Ev.  137;  1 
Phill.  Kv.  (7th  ed.)  110. 


SEC.  499.]  WEIGHT    AND   SUFFICIENCY.  545 

weakest  and  most  suspicious  of  all  evidence,^  because  many 
instances  have  occurred  in  which  innocent  persons  confessed 
themselves  guilty  of  crimes  of  the  gravest  nature.^  Such 
confession  should  always  be  received  with  very  great  caution, 
and  the  jury  should  hesitate  to  convict  on  such  confession, 
unless  corroborated  by  other  circumstances  or  evidence.^ 

A  confession  when  once  freely  made  is  not  rendered 
inoperative  b}^  a  subsequent  retraction ;  ^  but  a  confession 
made  under  a  mistake  of  fact  will  be  disregarded ;  ^  and  a 
statement  to  a  third  party  by  an  interpreter,  of  admissions  by 
the  accused,  though  made  in  the  presence  of  such  accused, 
Avill  not  bind  him  when  it  appears  that  he  did  not  understand 
the  language  in  which  it  was  made  ;  consequently  evidence 
of  such  a  statement  by  an  interpreter  is  inadmissible  — 
because  hearsay  evidence  pure  and  simple.^ 

Sec.  499.  Same  —  Nature  and  effect.  —  Confessions  are 
either  judicial  or  extrajudicial ;  that  is,  a  plea  of  guilty  made 
before  a  competent  tribunal  upon  arraignment  or  trial,  or  a 
confession  made  to  officers  or  other  persons  outside  of  the 
court-room.  The  first  are  sufficient  whereon  to  found  a  con- 
viction,^ but  the  latter  are  to  be  received  with  great  caution 
and  weighed  with  diligent  care,  and  are  never  sufficient 
evidence  upon  which  to  found  a  conviction,  unless  supported 
by  facts  and  circumstances  tending  to  demonstrate  the  charge 
to  the  satisfaction  of  the  court.'^ 


1  See   4   Bl.  Comm.  357;   Foster's  (>  Mont.  242  (188G)  ;  s.c.  11  Pac.  Rep. 

Disc.  24;j.  (iTO. 

-  Brister    v.    State,    2G    Ala.    107  «  Marsli  i'.  Mitchell,  20  N.  J.  Eq. 

(1855);  1   Greenl.  Ev.   (14th  ed.)   §  (11  C.  E.  Or.)  497  (1875);  Roscoe's 

214;  Wliart.  Cr.  Ev.  (9th  ed.)  §  (W4.  Cr.  Ev.  (10th  ed.)  40. 

See    Kerr's    "Before    and    at    trial,"  "  See  Winslow  r.  State,  70  Ala.  42 

p.   283   et  seq.  for   instances    of    this  (1884)  ;  Johnson  r.  State,  59  Ala.  37 

kind.  (1877)  ;    Matthews   v.   State,  55  Ala. 

3  Jones  V.  State,  13  Tex.  108  (1854);  187  (1870)  ;  Sampson  v.  State,  54  Ala. 

s.c.  02  Am.  Dec.  550.  241    (1875)  ;    Mose  v.  State,  30  Ala. 

*  See  State  I'.  Welch,  7  Port.  (Ala.)  211   (1800);  Yates  v.  State,  47  Ark. 

403  (1838);    Hall  v.  Huse,  10  Mass.  172   (1880);    s.c.  1    S.    W.    Rep.    05; 

39   (1813)  ;    State    v.    Brown,    1    Mo.  People  v.  Thrall,  50  Cal.  415  (1875)  ; 

App.  80  (1877)  ;  Whart.  Cr.  Ev.  (9th  People  v.  Ah  How,  34  Cal.  218  (1807)  ; 

ed.)    §    025.     Compare    Blackburn    v.  Di.xon  v.  State,  13    Fla.  031   (1871); 

Commonwealth,    12    Bush  (Ky.)    187  Anderson  y.  State,  72  Ga.  98  (1883); 

(1870).  Daniel    r.  State,  03  Ga.  -339  (1879)  ; 

^  Territory  v.  Big  Knot  on  Head,  Eurp  v.  6'tatc,  55  Ga.  130  (1875)  ;  s.c. 


O 


5 


546 


HOMICIDE. 


[chap.  XXIII. 


In  Dow  V.  Murrill,^  Chancellor  Walworth  says  that  "  the 
confessions  of  the  party  should  always  be  scrutinized  with 
caution ;  as  it  is  the  most  dangerous  evidence  that  can  be 
admitted  in  a  court  of  justice,  and  the  most  liable  to  abuse. 
Although  a  witness  is  perfectly  honest,  it  is  impossible,  in 
most  cases,  for  him  to  give  the  exact  words  in  which  the. 
admission  was  made.  And  sometimes  even  the  transporta- 
tion of  the  words  of  a  party  may  give  a  meaning  entirely 


I  Am.  Cr.  Rep.  171 ;  Nesbit  v.  State, 
4;}  Ga.  289  (1871)  ;  Stephen  v.  State, 

II  Ga.  225  (1852)  ;  Williams  v.  Peo- 
ple, 101  111.  382  (1882)  ;  May  i-.  People, 
92  111.  343  (1879)  ;  Bergen  v.  People, 

17  111.  42G  (1850);  State  v.  Knowles, 
48  Iowa,  598  (1878) ;  Butler  v.  Com- 
monwealth, 2  Duv.  (Ky.)  435  (1860); 
Commonwealth  i\  Smith,  119  Mass. 
305  (1870);  Commonwealth  v.  Mc- 
Cann,  97  Mass.  580  (1807)  ;  People  v. 
Lane,  49  Mich.  340  (1882)  ;  s.c.  13 
N.  W.  Rep.  622 ;  People  v.  Lambert, 
5  Mich.  349  (1858)  ;  Pitts  v.  State,  43 
Miss.  472  (1871)  ;  Jenkins  v.  State,  41 
Miss.  582  (1807)  ;  Sam  v.  State,  33 
Miss.  347  (1857)  ;  Brown  v.  State,  32 
Miss.  433  (1856)  ;  Stringfellow  v. 
State,  26  Miss.  157  (1853)  ;  State  v. 
Patterson,  73  Mo.  695,  705  (1881); 
State  V.  German,  54  Mo.  526  (1874)  ; 
s.c.  14  Am.  Rep.  481 ;  State  v.  Scott, 
39  Mo.  424  (1867)  ;  State  v.  Lamb,  28 
Mo.  218  (1859)  ;  Territory  v.  Farrell, 
(i  Mont.  12  (1880)  ;  s.c.  9  Pac.  Rep. 
536;  Terry  v.  McClin,  1  Mont.  394 
(1871);  Smith  v.  State,  17  Neb.  358 
(1885)  ;  s.c.  22  N.  W.  Rep.  780;  Priest 
V.  State,  10  Neb.  393  (1880) ;  s.c.  G 
N.  W.  Rep.  468;  State  v.  Guild,  10 
N.  J.  L.   (5   Halst.)  163  (1828)  ;  s.c. 

18  Am.  Dec.  404;  People  v.  Jaehne, 
103  N.  Y.  182  (1886)  ;  s.c.  8  N.  E. 
Rep.  374  ;  People  v.  Bennett,  49  N.  Y. 
137  (1872);  RulofE  v.  People,  18 
N.  Y.  179  (1858)  ;  s.c.  3  Park. 
Cr.  Cas.  (N.  Y.)  401 ;  Lyon  v.  Lyon, 

62  Barb.  (N.  Y.)  138  (1861);  Peo- 
ple   V.   Badgely,    16    Wend.    (N.    Y.) 

63  (183(i);  People  v.  Hennessey,  15 
Wend.  (N.  Y.)  147  (1836)  ;  State  v. 
Cowan,  7  Ired.  (N.  C.)  L.  239  (1847)  ; 
State  r.  Lewis,  1  Winst.  (N.  C.)  No.  I, 


307  (1864)  ;  State  i'.  Gardiner,  Wright 
(Ohio)  392  (1833)  ;  Laros  v.  Com- 
monwealth, 84  Pa.  St.  200  (1877); 
Commonwealth  v.  Hanlon,  3  Brewst. 
(Pa.)  461  (1870)  ;  Commonwealth  v. 
Pettit,  8  Phila.  (Pa.)  608  (1871);  Ty- 
ner  v.  State,  5  Humph.  (Tenn.)  383 
(1844)  ;  Strait  v.  State,  43  Tex.  486 
(1875)  ;  Berry  v.  State,  4  Tex.  App. 
492  (1879)  ;  State  v.  Davidson,  30  Vt. 
377  (1858)  ;  Smith  v.  Commonwealth, 
21  Gratt.  (Va.)  809  (1871)  ;  United 
States  V.  Williams,  1  Cliff.  C.  C.  5 
(1858).  See  also  Hughes  v.  Hughes, 
19  Ala.  307  (1851)  ;  Moyler  v.  Moyler, 
11  Ala.  620  (1847);  Evans  y.  Evans, 
41  Cal.  103  (1871)  ;  Woolfolk  v.  Wool- 
folk,  53  Ga.  661  (1875)  ;  Buckholts  v. 
Buckholts,  24  Ga.  239  (1858)  ;  Stib- 
bins  V.  Stibbins,  1  Met.  (Ky.)  476 
(1858)  ;  Robbins  m.  Robbins,  100  Mass. 
150  (1868);  Billings  v.  Billings,  28 
Mass.  (11  Pick.)  461  (1831)  ;  True  v. 
True,  6  Minn.  458  (1861)  ;  Armstrong 
V.  Armstrong,  32  Miss.  279  (1856); 
White  V.  White,  45  N.  H.  121  (1863)  ; 
Derby  v.  Derby,  21  N.  J.  Eq.  (6  C.  E. 
Gr.)  36  (1870);  Clutch  v.  Clutch,  1 
N.  J.  Eq.  (1  Saxt.)  474  (1831)  ;  Mil- 
ler V.  Miller,  1  N.  J.  Eq.  (1  Saxt.) 
.386  (1831)  ;  s.c.  2  N.  J.  Eq.  (1  Green's 
Ch.)  1.39;  Lyon  v.  Lyon,  62  Barb. 
(N.  Y.)  138  (1861)  ;  Callender  v.  Cal- 
lender,  53  How.  (N.  Y.)  Pr.  364  (1877); 
Doe  i:  Roe,  1  Johns.  Cas.  (N.  Y.)  25 
(1799);  Betts  >'.  Betts,  1  Johns.  Ch. 
(N.  Y.)  197  (1814)  ;  Brainard  y.Brain- 
ard,  Wright  (Ohio)  .354  (1833)  ; 
Mntchin  >:  Matchin,  6  I'a.  St.  .332 
(1847)  ;  Richardson  v.  Richardson, 
50  Vt.  119  (1877)  ;  Latham  f.  Latham, 
30  Gratt.  (Va.)  307  (1878). 

1  6  Wend.  (.\.  Y.)  268  (1830). 


SEC.  500.] 


WEIGHT    AND    SUFFICIENCY. 


547 


different  from  the  one  whicli  was  intended  to  be  conveyed  to 
the  witness.^ 

It  is  thought  that,  subject  to  the  above  cautions  and  re- 
strictions in  regard  to  receiving  and  weighing  them,  confes- 
sions of  guilt  deliberately  made  are  among  the  most  effectual 
and  satisfactory  proofs  that  can  be  received.^  It  is  said  that 
"their  value  depends  on  the  supposition  that  they  are  delib- 
erate and  voluntary,  and  on  the  presumption  that  a  rational 
being  will  not  make  admissions  prejudicial  to  his  interest 
and  safety,  unless  when  urged  by  the  promptings  of  truth 
and  conscience."  ^ 

Sec.  500.  Same  —  Must  be  free  aucl  voluntary. — All 
confessions,  before  being  admitted  in  evidence,  must  be 
shown  to  have  been  freely  and  voluntarily  made.  Confes- 
sions obtained  by  any  direct  or  indirect  promise  or  induce- 
ment held  out  to  the  party,  or  extracted  by  any  sort  of  threats 
or  violence,  or  by  the  exertion  of  any  improper  influence,  are 
not  admissible  in  evidence."*     If,  under  the  circumstances  in 


1  See  People  v.  Gelabert,  89  Cal. 
(iOo  (1870)  ;  Commonwealtli  v.  Galli- 
gan,  li;}  Mass.  202  (1873)  ;  Malin  v. 
Malin,  1  Wend.  (N.  Y.)  620  (1828)  ; 
Fouts  V.  State,  8  Ohio  St.  08  (1857)  ; 
State  V.  Gardiner,  Wright  (Oliio) 
392  (1833)  ;  United  States  v.  Nott, 
1  McL.  C.  C.  499  (1839). 

2  See  State  v.  Brown,  48  Iowa,  382 
(1878) ;  Harris  v.  Harris,  2  Hagg. 
Eccl.  409  (1829)  ;  Mortimer  v.  Morti- 
mer, 2  Hagg.  Const.  315  (1820);  1 
Gilb.  Ev.  (Lofit's  ed.)  §  215  ;  1  Greenl. 
Ev.  (14th  ed.)  §  215;  Hawk.  P.  C., 
b.  2,  c.  46,  §  3,  note  (1). 

3  1  Greenl.  Ev.    (14th  ed.)   §    215 

4  Owen  V.  State,  78  Ala.  425  (1885) , 
Kelly  V.    State,   72  Ala.  244  (1882) 
Redd  V.   State,  69   Ala.  255   (1881) 
Young  V.  State,  68  Ala.  569  (1881) 
Murphy  v.  State,  63   Ala.   1   (1879) 
Porter  v.  State,  55   Ala.  95   (1876) 
Levison  v.  State,  54  Ala.  520  (1875) 
Ward  V.  State,  50  Ala.  120  (1873) 
Miller   v.  State,  40   Ala.  54   (1866)  ; 
Dinan  v.  State,  39  Ala.  .359  (1864);  Joe 
V.  State,  38  Ala.  422  (1863)  ;  Aaron  v. 
State,  37   Ala.   106    (1861);   Mose   v. 
State,  36  Ala.  211   (1860)  ;   Franklin 


V.  State,  28  Ala.  9  (1856)  ;  Brister  v. 
State,  26  Ala.  107  (1855);  Wyatt  v. 
State,  25  Ala.  9  (1854)  ;  Yates  v.  State, 
47  Ark.  172  (1886)  ;  s.c.  1  S.  W.  Rep. 
65;  Runnels  v.  State,  28  Ark.  121 
(1873)  ;  Flanagin  v.  State,  25  Ark.  92 
(1867);  Love  v.  State,  22  Ark.  336 
(I860)  ;  Austin  v.  State,  14  Ark.  556 
(1854)  ;  People  i-.  Parton,  49  Cal.  632 
(1875)  ;  People  v.  Barrio,  49  Cal.  342 
(1874);  People  v.  Johnson,  41  Cal. 
452  (1871)  ;  People  v.  Jim  Ti,  32  Cal. 
60  (1867)  ;  People  v.  Smith,  15  Cal. 
408  (1860)  ;  Beery  v.  United  States,  2 
Colo.  186  (1873)  ;  State  v.  Potter,  18 
Conn.  166  (1846)  ;  State  v.  Bostick, 
4  Harr.  (Del.)  503  (1845);  State  v. 
Harman,  3  Harr.  (Del.)  567  (1839); 
Metzger  v.  State,  18  Fla.  481  (1881)  ; 
Simon  v.  State,  5  Fla.  285  (1853); 
Byrd  v.  State,  68  Ga.  661  (1882); 
Johnson  v.  State,  61  Ga.  305  (1878) ; 
Dumas  r.  State,  63  Ga.  600  (1879)  ; 
Earp  V.  State,  55  Ga.  136  (1875)  ;  s.c. 
1  Am.  Cr.  Rep.  171  ;  Frain  v.  State, 
40  Ga.  529  (1869)  ;  Rafe  r.  State,  20 
Ga.  60  (1856);  Jim  v.  State,  15  Ga. 
5.35  (1854)  ;  Stephen  v.  State,  11  Oa. 
225  (1852)  ;  Brown  v.  People,  91   111. 


548 


HOMICIDE. 


[chap.  XXIII. 


the  case,  there  be  reasonable  grounds  for  presuming  that  the 
confession  was  made  under  the  influence  of  any  promise  or 


506  (1878)  ;  Austin  v.  People,  51  111. 
2ot3  (1809)  ;  Miller  v.  People,  39  III. 
457  (1866)  ;  State  v.  Freeman,  12 
Ind.  100  (1859)  ;  Smith  v.  State,  10 
Ind.  106  (1858)  ;  Hamilton  v.  State, 
3  Ind.  552  (1852)  ;  State  v.  Sopher,  70 
Iowa,  494  (1886)  ;  s.c.  30  N.  W.  Rep. 
917  ;  State  v.  Chambers,  39  Iowa,  179 
(1874) ;  State  v.  Ostrander,  18  Iowa, 
435  (1865)  ;  Hector  v.  Commonwealth, 
80  Ky.  468  (1882)  ;  Young  v.  Com- 
monwealth, 8  Bush  (Ky.)  366  (1871)  ; 
Hudson  V.  Commonwealth,  2  Duv. 
(Ky.)  531  (1866)  ;  Rutherford  v.  Com- 
monwealth, 2  Met.  (Ky.)  387  (1859)  ; 
State  V.  Revells,  34  La.  An.  381  (1882)  ; 
s.c.  44  Am.  Rep.  436  ;  State  v.  Garvej-, 
28  La.  An.  925  (1876)  ;  State  v.  Kitty, 
12  La.  An.  805  (1887) ;  State  v.  Nel- 
son, 3  La.  An.  497  (1848) ;  State  v. 
Grant,  22  Me.  171  (1842)  ;  Nicholson 
V.  State,  38  Md.  140  (1873)  ;  Common- 
wealth ('.  Preece,  140  Mass.  276  (1885) ; 
s.c.  5  N.  E.  Rep.  494;  Commonwealth 
V.  Nott,  135  Mass.  269  (1883)  ;  Com- 
monwealth I).  Smith,  119  Mass.  305 
(1876)  ;  Commonwealth  v.  CuUen,  111 
Mass.  435  (1873)  ;  Commonwealth  v. 
Howe,  84  Mass.  (2  Allen)  153  (1861)  ; 
Commonwealth  v.  Whittemore,  77 
Mass.  (11  Gray)  201  (1858)  ;  Com- 
monwealth i\  Tuckerman,  76  Mass. 
(10  Gray)  173  (1857)  ;  Commonwealth 
V.  Morey,  67  Mass.  (1  Gray)  461 
(1854) ;  Commonwealth  r.  Taylor,  59 
Mass.  (5  Cush.)  605  (1850)  ;  Lambeth 
V.  State,  23  Miss.  322  (1852)  ;  Com- 
Tnonwealth  v.  Knapp,  26  Mass.  (9 
Pick.)  496  (1830);  People  v.  Wolcott, 
51  Mich.  612  (1883) ;  s.c.  17  N.  W. 
Rep.  78;  Flagg  v.  People,  40  Mich. 
706  (1879)  ;  State  v.  Staloy,  14  Minn. 
105  (1869)  ;  Simmons  v.  State,  61 
Miss.  243  (1883)  ;  Garrard  r.  State, 
50  Miss.  147  (1874);  Cady  r.  State, 
44  .Miss.  332  (1870)  ;  Frank  r.  State, 
39  Miss.  705  (1861);  Jordan  r. 
State,  32  Miss.  382  (1856)  ;  Dick  ;•. 
State,  30  Miss.  593  (1856);  Lambeth 
I'.  State,  23  Miss.  322  (1852);  State 
V.  Hopkirk,  84  Mo.  278  (1884)  ;  State 


V.  Phelps,  74  Mo.  128  (1881)  ;  State 
V.  Patterson,  73  Mo.  696  (1881)  ; 
State  V.  Hagan,  54  Mo.  192  (1873)  ; 
Stats  V.  Brockman,  46  Mo.  566  (1870)  ; 
Couley  V.  State,  12  Mo.  462  (1849); 
Hector  v.  State,  2  Mo.  166  (1829)  ;  s.c. 
22  Am.  Dec.  454;  State  v.  Squires,  48 
N.  II.  364  (1869)  ;  State  v.  Wentworth, 
37  N.  H.  196  (1858)  ;  State  v.  York,  37 
N.  H.  175  (1858)  ;    State  v.  Howard, 

17  N.  H.  171  (1845)  ;  State  v.  Guild, 
10  N.  J.  L.  (5  Ha  1st.)  163  (1828)  ;  s.c. 

18  Am.  Dec.  404  ;  Derby  o.  Derby,  21 
N.  J.  Eq.  (6  C.  E.  Gr.)  36  (1870)  ; 
State  V.  Carrick,  16  Nev.  120  (1881); 
People  V.  Druse,  103  N.  Y.  655  (1886)  ; 
s.c.  8  N.  E.  Rep.  733 ;  People  v.  Mon- 
don,  103  N.  Y.  211  (1886)  ;  s.c.  8  N.  E. 
Rep.  496 ;  Cox  v.  People,  80  N.  Y.  500 
(1880)  ;  People  v.  Phillips,  42  N.  Y. 
200  (1870)  ;  People  r.  Wentz,  37  N.  Y. 
309  (1867)  ;  People  v.  McMahon,  15 
N.  Y.  384  (1857)  ;  O'Brien  v.  People, 
48  Barb.  (N.  Y.)  274  (1867)  ;  Ward 
V.  People,  3  Hill  (N.  Y.)  395  (1842) ; 
People  r.  Thoms,  3  Park.  Cr.  Cas. 
(N.  Y.)  256  (1855)  ;  People  v.  Burns, 

2  Park.  Cr.  Cas.  (N.  Y.)  34  (1823)  ; 
State  V.  Mills,  91  N.  C.  581  (1884)  ; 
State  V.  Whitfield,  70  N.  C.  356  (1874); 
State  r.  Lowhorne,  66  N.  C.  638  (1872); 
State  V.  Patrick,  3  Jones  (N.  C.)  L. 
443  (1856)  ;  Price  v.  State,  18  Ohio 
wSt.  418  (1868)  ;  Fouts  v.  State,  8  Ohio 
St.  98  (1857)  ;  Spears  v.  State,  2  Ohio 
St.  584  (1853)  ;  Laros  v.  Common- 
wealth, 84  Pa.  St.  200  (1877)  ;  Fife  ,: 
Commonwealth,  29  Pa.  St.  429  (1857); 
Commonwealth  v.  Hanlon,  3  Brewst. 
(Pa.)  461  (1870)  ;  State  r.  Gossett,  9 
Rich.  (S.  C.)  L.  428  (1856);  State  i'. 
Freeman,  1  Speers  (S.  C.)  L.  57 
(1842)  ;  McGlothlin  r.  State,  2  Coldw. 
(Tenn.)  223  (1865);  White  v.  State, 

3  Ileisk.  (Tenn.)  338  (1872);  More- 
head  V.  State,  9  Humj)!!.  (Tenn.)  635 
(1849);  Boyd  ;•.  State,  2  Humph. 
(Tenn.)  39  (1840)  ;  State  v.  Rigsby, 
6  Lea  (Tenn.)  554  (1880);  Strait  r. 
State,  43  Te.\.  486  (1875)  ;  Barnes  r. 
State,    'M   Tex.  356    (1872)  ;    Cain  v. 


SEC.  501.] 


WEIGHT    AND    SUFFICIENCY. 


549 


any  threat  of  a  temporal  nature,  it  should  not  be  received  in 
evidence.^ 

Sec.  501.  Same  —  Induceiiieut  to  confession  —  Persons 
in  authority.  —  The  inducement  must  relate  to  the  person 
charged  ^  and  to  the  offence  for  which  he  is  apprehended ;  ^ 
but  Avhere  a  threat  was  held  out  to  the  prisoner  without  the 
nature  of  the  charge  being  stated,  and  subsequently  the 
nature  of  the  charge  was  stated,  and  thereupon  a  confession 
was  made,  it  was  held  to  be  inadmissible.^ 


State,  18  Tex.  387  (18")7)  ;  Noleii  v. 
State,  U  Tex.  App.  474  (188;})  ;  s.c.  40 
Am.  Rep.  247 ;  Grosse  v.  State,  11 
Tex.  App.  .3(54  (1882) ;  Masseyy.  State, 
10  Tex.  App.  045  (1881)  ;  State  v.  Dai/, 
55  Vt.  510  (1883)  ;  s.c.  4  Am.  Cr.  Rep. 
104;  State  v.  Carr,  37  Vt.  191  (1804)  ; 
State  V.  Walker,  34  Vt.  290  (1801)  ; 
State  V.  Phelps,  11  Vt.  110  (1839); 
Thompson  V.  Commonwealth,  20  Gratt. 
(Va.)  724  (1870)  ;  Vaughan  v.  Com- 
monwealth, 17  Gratt.  (Va.)  570  (1807); 
Smith  I'.  Commonwealth,  10  Gratt. 
(Va.)  734  (1853);  United  States  v. 
Charles,  2  Cr.  C.  C.  70  (1813)  ;  United 
States  V.  Fumphreys,  1  Cr.  C.  C.  74 
(1802)  ;  United  States  v.  Nott,  1  McL. 
C.  C.  499  (1839) ;  3  Russ.  on  Cr.  (9th 
Am.  ed.)  307.     See  post,  §  500. 

1  Owen  V.  State,  78  Ala.  425  (1885)  ; 
Redd  V.  State,  09  Ala.  255  (1881)  ; 
Murphy  v.  State,  03  Ala.  1  (1879)  ; 
Porter  \'.  State,  55  Ala.  95  (1870)  ; 
Levison  v.  State,  54  Ala.  520  (1875)  ; 
Miller  v.  State,  40  Ala.  54  (1800);  Bris- 
ter  V.  State,  20  Ala.  107  (1855).  Run- 
nels V.  State,  28  Ark.  121  (1873)  ;  Peo- 
ple I'.Barrie,  49  Cal.  342  (1874)  ;  State 
V.  Bostick,4  Harr.  (Del.)  503  (1845)  ; 
Metzger  v.  State,  18  Fla.  481  (1881)  ; 
Byrd  v.  State,  08  Ga.  0(51  (1882)  ;  Du- 
mas V.  State,  (53  Ga.  000  (1879)  ;  Mil- 
ler V.  People,  .39  111.  457  (18(56)  ;  Smith 
V.  State,  10  Ind.  100  (1858)  ;  Rector  v. 
Commonwealth,  80  Ky.  408  (1882)  ; 
Commonwealth  ?-'.  Nott,  135  Mass. 
209  (1883)  ;  Commonwealth  v.  Cuffee, 
108  Mass.  285  (1871)  ;  Commonwealth 
V.  Tuckerman,  70  Mass.  (10  Gray) 
190  (1857)  ;    Commonwealth  v.  Tay- 


lor, 59  Mass.  (5  Cush.)  005  (1850)  ; 
People    V.     Wolcott,    51    Midi.    012 

(1883)  ;  s.c.  17  N.  W.  Rep.  78  ;  Flagg 
r.  People,  40  Mich.  700  (1879)  ;  Sim- 
mons r.  State,  01  Miss.  243  (1883)  ; 
Jordan  v.  State,  32  Miss.  382  (185(5)  ; 
Van  Buren  v.  State,  24  Miss.  512 
(1852)  ;  State  v.  Hopkirk,  84  Mo.  278 

(1884)  ;  State  v.  Phelps,  74  Mo.  128 
(1881)  ;  State  v.  Patterson,  73  Mo. 
090  (1881)  ;  State  v.  Plagan,  54  Mo. 
192  (1873)  ;  Hecioi-  v.  State,  2  Mo.  100 
(1829)  ;  s.c.  22  Am.  Dec.  4-54 ;  Stale 
v.  Carrick,  10  Nev.  120  (1881)  ;  State 
r.  York,  37  N.  H.  175  (1858) ;  State  v. 
Guild,  10  N.  J.  L.  (5  Haist.)  1(J3 
(1828)  ;  s.c.  18  Am.  Dec.  404  ;  Cox  v. 
People,  80  N.  Y.  500  (1880)  ;  People 
V.  Wentz,  37  N.  Y.  -309  (1807)  ;  State 
V.  Whitfield,  70  N.  C  350  (1874)  ; 
Spears  v.  State,  2  Ohio  St.  684  (1853)  ; 
Fife  V.  Commonwealth,  29  Pa.  St. 
429  (1857)  ;  State  v.  Rigsby,  0  Lea 
(Tenn.)  .554  (1880)  ;  Cain  v.  State,  18 
Tex.  387  (1857)  ;  Davis  v.  State,  2 
Tex.  App.  588  (1878)  ;  State  v. 
Walker,  34  Vt.  290  (1801)  ;  State  v. 
Phel/is,  11  Vt.  110  (1839);  s.c.  34 
Am.  Dec.  072  ;  3  Russ.  on  Cr.  (9th 
Am.  ed.)  308. 

2  In  Plana  gin  r.  State,  25  Ark.  92 
(1807),  it  is  said  that  where  the 
threats  made,  or  inducements  held 
out,  took  effect  through  suspected 
persons,  it  is  not  relevant  to  inquire 
into  them. 

3  Rex  r.  Warner,  3  Russ.  Cr.  (5th 
Eng.  ed.)  452  (1832). 

*  Reg.  V.  Luckhurst,  1  Dears  C.  C. 
245  (1853). 


550  HOMICIDE.  [chap.  XXIII. 

The  inducement  to  a  confession,  in  order  to  render  such 
confession  inadmissible  in  evidence,  must  have  been  held  out 
by  a  person  in  authority.^  Where  the  inducement  is  held 
out  by  a  person  in  superior  authority  and  the  confession  is 
made  to  a  person  in  inferior  authority,  it  will  be  inadmissible 
in  evidence,  especially  if  such  inferior  officer  did  not  give  the 
prisoner  any  caution.^  But  it  is  thought  that  mere  sugges- 
tions or  advice  to  the  accused  to  confess,  or  even  solemn 
entreaty  to  do  so  by  a  person  holding  an  official  position,  will 
not  render  the  confession  inadmissible .^ 

Whether  the  confession  was  freely  and  voluntarily  made 
without  the  incentive  of  hope  or  fear  by  any  person,  is  to  be 
determined  by  the  judge  trying  the  case,  upon  consideration 
of  the  age,  station,  and  character  of  the  prisoner,  and  the  cir- 
cumstances under  which  it  was  made.*  It  is  thought  that  a 
confession  made  to  an  officer  will  not  be  excluded  from  the 
jury  merely  because  it  appears  that  the  accused  was  previously 
in  the  custody  of  another  officer.  In  such  a  case  it  is  not  a 
condition  precedent  to  the  admission  of  such  evidence  to 
require  that  the  latter  officer  be  called,  unless  the  circum- 
stances under  which  the  confession  was  made  render  it 
probable  that  the  accused  held  a  conversation  with  the  first 

1  Roscoe's  Cr.  Ev.  (lOtli  ed.)  4G.  Vt.  296  (1881)  ;  Vauglian  v.  Corn- 
See  Spicer  v.  State,  09  Ala.  159  (1881)  ;  monwealth,  17  Gratt.  ( Va.)  576  (1867); 
Ward  I'.  State,  50  Ala.  120  (1873)  ;  Smith  v.  Commonwealth,  10  Gratt. 
People  V.  Barric,  49  Cal.  342  (1874)  ;  (.Va.)  734  (1853)  ;  Reg.  v.  Taylor,  8 
Austine  v.  People,  51  111.  236  (1869)  ;  Car.  &  P.  733  (1839)  ;  s.c.  34  Eng. 
Young  V.  Commonwealth,  8  Bush  C.  L.  990;  Reg.  f.  Moore,  2  Den.  C.  C. 
(Ky.)  360  (1871) ;  Rutherford  v.  520  (1852).  See  post,  §  506. 
Commonwealth,  2  Mete.  (Ky.)  387  2  Re.x.  v.  Cooper,  5  Car.  &  P.  535 
(1859);  Commonwealth  v.  Culver,  126  (1833). 

Mass.    464     (1879)  ;     Commonwealth  3  ytate  v.  Fredericks,  85  Mo.  145 

V.   McCann,   97    Mass.    580    (1867)  ;  (1884). 

Commonwealth     v.     Tuckerman,     70  *  Commonwealth     v.     Knapp,     27 

Mass.  (10  Gray)  173  (1857)  ;  State  v.  Mass.  (10  Pick.)   496    (1830)  ;   State 

York,  37    N.  H.  175    (1858)  ;    People  v.   Fredericks,   85    Mo.    145    (1884) ; 

V.  Wentz,  37  N.  Y.  303  (1867)  ;  State  State     v.     Guild,     10    N.    J.    L.     (5 

V.  Lowhorne,  06   N.    C.   639    (1872)  ;  Halst.)    175    (1828) ;    United    States 

State  V.  Wintzingerode,  9  Oreg.   153  v.  Nott,  1   McL.  C.  C.   490    (1839)  ; 

(1881)  ;    State   v.    Kirby,   1    Strobh.  Reg.  v.  Drew,  8  Car.  &  P.  140  (1837)  ; 

(S.    C.)    L.    155    (1846)  ;    Wilson    v.  s.c.    34    Eng.     C.    L.     654 ;    Rex    v. 

State,  3  Heisk.  (Tenn.)   232   (1871)  ;  Court,  7  Car.  &  P.  486  (1836)  ;  s.c. 

Boyd  V.  State,  2   Humph.   (Tenn.)  39  32  Eng.  C.  L.  721 ;  Rex  r.  Tiiomas,  7 

(1840)  ;  Deathridge  v.  State,  1  Sneed  Car.  &   P.  345    (1836)  ;    s.c.  32   Eng. 

(Tenn.)  75  (1853)  ;  State  v.  Day,  55  C.  L.  048. 
Vt.  510  (1883)  ;  State  v.  Walker,  34 


SEC.  501.] 


WEIGHT    AND    SUFFICIENCY. 


551 


officer  upon  the  subject  of  a  confession,  or  that  there  is  a  col- 
lusion between  the  officers.^ 

If  one  is  a  person  in  authority  who  is,  or  in  the  ordinary 
courte  of  things  will  become,  the  prosecutor ;  the  constable 
or  other  officer  in  charge  of  the  prisoner ;  an}^  person  having 
judicial  authority  over  the  prisoner ;  and  the  master  or  mis- 
tress of  the  prisoner,  wliere  the  offence  concerns  them,  —  any 
confession  made  to  them  will  be  inadmissible  in  evidence 
against  the  prisoner.^  And  it  has  been  said  that  confessions 
will  be  invalidated  where  inducements  were  held  out  by  a 
constable  or  other  officer ;  ^  some  person  assisting  the  consta- 
ble or  other  officer  in  the  apprehension  or  detention  of  the 
prisoner ;  ^  by  a  jailer  ^  or  chaplain  of  the  jail  where  the  pris- 
oner is  confined  ;  ^  a  magistrate  acting  in  the  business,*  or  other 
magistrate,^  or  a  magistrate's  clerk ; "  by  the  master  or  mis- 
tress to  a  servant ;  ^  by  any  one  having  authority  over  the 
prosecution  itself;^  by  an  officer  having  the  prisoner  in  cus- 
tody ;  '^^  by  a  person  having  authority  in  the  matter,^^  such  as 
a  woman  in  whose  custody  the  prisoner,  a  female,  with  whom 


1  Hopt  r.  Teople  of  Utah,  110  U.  S. 
574  (1884)  ;  bk.  28  L.  ed.  202.  See 
King  V.  State,  40  Ala.  314  (1867);  Peo- 
ple r.  Abbott,  4  Pac.  Rep.  7(59  (1884), 
affirmed  without  report  in  66  Cal. ; 
Cobb  I'.  State,  27  Ga.  648  (1859)  ; 
Commonwealth  v.  CuUen,  111  Mass. 
435  (1873)  ;  State  v.  Guy,  69  Mo.  430 
(1879);  Ballard  i-.  State',  19  Neb.  609 
(1886)  ;  s.c.  28  N.  W.  Rep.  271 ;  Peo- 
ple V.  Rogers,  18  N.  Y.  9  (1858); 
Harris  v.  State,  6  Tex.  App.  97  (1879)  ; 
Walker  v.  State,  2  Tex.  App.  326 
(1878). 

2  Ward  V.  State,  50  Ala.  120  (1873)  ; 
Beery  v.  United  States,  2  Colo.  186 
(1873) ;  State  v.  Bostick,  4  Harr. 
(Del.)  564  (1845)  ;  Austine  v.  People, 
51  111.  236  (1869)  ;  Commonwealth  v. 
Sego,  125  Mass.  210  (1878)  ;  State  v. 
Gossett,  9  Rich.  (S.  C)  428  (1856)  ; 
State  V.  Tatro,  50  Vt.  483  (1878); 
Vaughan  v.  Commonwealth,  17  Gratt. 
(Va.)  576  (1867)  ;  Shifflet  v.  Common- 
wealth, 14  Gratt.  (Va.)  652  (1858); 
Reg.  V.  Moore,  2  Den.  C.  C.  526  (1852)  ; 
Roscoe's  Cr.  Ev.  (10th  ed.)  46. 


^  Rex  V.  Sexton,  1  Burn  J.  D. 
&  Williams,  1086. 

*  1  Phill.  Ev.  (7th  ed.)  407. 

5  Rex  V.  Gilham,  1  Moo.  C.  C.  186 
(1828). 

6  Rex  V.  Clewes,  4  Car.  &   P.  221 

(1830)  ;  s.c.  19  Eng.  C.  L.  485. 

^  Reg.  V.  Drew,  8  Car.  &  P.  140 
(1837)  ;  s.c.  34  Eng.  C.  L.  654. 

s  Rex  V.  Upchurch,  1  Moo.  C.  C. 
465  (1836). 

9  Rex  1-.  Parratt,  4  Car.  &  P.  570 

(1831)  ;  s.c.  19  Eng.  C.  L.  654. 

10  Rex  V.  Shepherd,  7  Car.  &  P.  579 
(1830)  ;  s.c.  32  Eng.  C.  L.  768  ;  Rex  v. 
Mills,  6  Car.  &  P.  146  (18-33)  ;  s.c. 
25  Eng.  C.  L.  365;  Rex  v.  Swatkins,  4 
Car.  &  P.  548  (1831)  ;  s.c.  19  Eng. 
C.  L.  643;  Rex  v.  Thornton,  I  Moo. 
C.  C.  27  (1824)  ;  Rex  v.  Sextons,  6 
Petersd.  Abr.  84  (1822).  Compare 
Commonwealth  r.  Mosler,  4  Pa.  St. 
264  (1846). 

11  Rex  V.  Parratt,  4  Car.  &  P.  570 
(1831);  s.c.  19  Eng.  C.  L.  569;  1 
Phill.  Ev.  (7th  ed.)  407. 


552 


HOMICIDE. 


[chap.  XXIII. 


she  had  been  left  by  the  officer ;  i  by  a  private  person  in  the 
presence  of  one  in  authority  with  his  assent,  whether  direct 
or  implied ;  ^  by  the  prosecutor ;  ^  by  the  prosecutor's  attor- 
ney ;  *  by  the  prosecutor's  wife  ;  °  by  the  mother-in-law  cj^  the 
prosecutor,*^  in  his  house  and  in  the  presence  of  his  wife.'^ 

Sec.  502.    Same  —  Confessions  made  while  under  arrest. 

—  The  fact  that  a  confession  was  made  by  a  prisoner  while 
under  arrest,  or  that  it  was  made  to  the  officer  in  whose 
custody  he  was,  or  in  answer  to  questions  put  to  him  by  such 
officer,  will  not  be  sufficient  to  render  the  confession  inadmis- 
sible, unless  it  was  obtained  through  a  promise  of  benefit,  or 
through  fear.^  The  fear  necessary  to  induce  such  confes- 
sion must  be  something  more  than  the  fear  which  is  produced 
by  the  fact  that  the  defendant  was  accused  of  a  crime  and 
was  arrested  and  taken  into  custody.^ 


1  Rex  V.  Enoch,  5  Car.  &  P.  539 

(1838)  ;  s.c.  24  Eng.  C.  L.  696. 

2  Reg.  V.  Taylor,  8  Car.  &  P.  733 

(1839)  ;  s.c.  34  Eiig.  C.  L.  990 ;  Rex 
V.  Pountney,  7  Car.  &  P.  302  (1836)  ; 
s.c.  32  Eng.  C.  L.  625 ;  Reg.  v.  Gar- 
ner, 1  Den.  C.  C.  329  (1848). 

3  State  V.  Robert,  1  Dev.  (N.  C.) 
L.  259  (1827);  Reg.  r.  Laugher, 
2  Car.  &  K.  225  (1846);  s.c.  62 
Eng.  C.  L.  224  ;  Rex  v.  Pountney,  7  Car. 

6  P.  302  (1830)  ;  s.c.  32  Eng.  C.  L. 
625. 

■i  State  V.  Robert,  1  Dev.  (N.  C.) 
L.    259    (1827)  ;    Rex    v.   Partridge, 

7  Car.  &  P.  551  (1836)  ;  s.c.  32 
Eng.  C.  L.  754 ;  Rex  v.  Gibbons,  1 
Car.  &  P.  97,  note  (a)  (1823)  ;  s.c.  12 
Eng.  C.  L.  m  ;  Rex  v.  Jenkins,  R.  &  R. 
492  (1822)  ;  Reg.  v.  Hearn,  1  Car.  & 
Marsh.  109  (1841)  ;  s.c.  41  Eng.  C.  L. 
05;  Thompson's  Case,  1  Leach  C.  C. 
291  (1783)  ;  Cass'  Case,  1  Leach  C.  C. 
293,  note  (a)  (1784)  ;  Rex  i-.  Stacey,  3 
IJuss  Cr.  386,  9  Am.  etl.,  5  Eng.  ed. 
4(54  (1830)  ;  Rex  v.  Jones,  R.  &  R.  152 
(1809);  Rex  v.  Griffin,  R.  &  R.  151 
(1809). 

6  Reg.  r.  Croydon,  4  Cox  C.  C.  67. 

6  Reg.  r.  Taylor,  8  Car.  &  P.  733 
(1839)  ;  s.c.  34  Eng.  C.  L.  990;  Reg. 
V.  Hcwett,  1  Car.  &  Marsh.  534  (1842)  ; 


s.c.  41    Eng.    C.    L.  65;    Rex  r.  Up- 
church,  1  Moo.  C.  C.  465  (1836). 

'  Rex  V.  Simpson,  1  Moo.  C.  C.  410 
(1834). 

8  People  V.  Abbott  (Cal.),  4  Pac. 
Rep.  769  (1884) ;  State  v.  Patter- 
son, 73  Mo.  695  (1881)  ;  Jackson  v. 
State,  69  Ala.  251  (1881)  ;  Spicer 
V.  State,  69  Ala.  159  (1881);  Redd 
V.  State,  68  Ala.  492  (1881);  State 
V.  Guy,  69  Mo.  430  (1879);  Cox 
r.  People,  80  N.  Y.  500  (1880); 
State  V.  Tatro,  50  Vt.  483  (1878). 
See  Austin  v.  State,  14  Ark.  556 
(1854);  Cobb  v.  State,  27  Ga.  648 
(1859)  ;  Stephen  v.  State,  11  Ga.  225 
(1852)  ;  Commonwealth  v.  Cuffee,  108 
Mass.  285  (1871)  ;  Jones  v.  State,  58 
Miss.  349  (1880)  ;  Cox  v.  People,  80 
N.  Y.  500  (1880)  ;  Murphy  v.  People, 
63  N.  Y.  590  (1876)  ;  People  v.  McMa- 
hon,  2  Park.  Cr.  Cas.  (N.  Y.)  663 
(1855)  ;  State  v.  Jefferson,  6  Ired. 
(N.  C.)  L.  305  (1846)  ;  Common- 
wealth V.  Mosler,  4  Pa.  St.  264  (1846). 
Compare  Young  v.  Commonwealth,  8 
Bush  (Ky.)  366  (1871);  People  v. 
Wentz,  37  N.  Y.  303  (1867). 

9  Commonwealth  v.  Preece,  140 
Mass.  276  (1885)  ;  s.c.  5  N.  E.  Rep. 
494;  Commonwealth  v.  Smith,  119 
Mass.  305   (1870);   Commonwealth  r. 


SEC.  503.]  WEIGHT   AND   SUFFICIENCY.  653 

Under  the  Texas  statute  a  judicial  confession  made  wlule 
in  custody  is  not  admissible  in  evidence  against  the  prisoner.^ 

Sec.  503.  Same  —  Confessions  made  through  fear  of 
mob  violence.  —  Whether  or  not  confessions  which  are 
made  through  fear  of  mob  violence  are  admissible  in  evi- 
dence is  an  unsfettled  question.  In  Self  v.  State  ^  a  mob  had 
surrounded  a  jail,  and  the  sheriff  told  the  prisoner  that  she 
was  "  gone  up,"  whereupon  she  confessed,  and  on  the  trial 
the  court  held  the  confession  was  not  admissible.  In  Redd  v. 
State  ^  the  prisoner  was  advised  that  a  mob  was  gathering  in 
town  to  rescue  him  from  jail,  and  knew  that  a  guard  of  sev- 
eral persons  had  been  summoned  to  protect  him,  one  of  whom 
asked  him  "why  he  was  afraid  of  a  mob,"  and  the  sheriff 
himself,  in  the  presence  of  half  a  dozen  of  the  guards,  stated 
to  the  prisoner  that  he  was  in  a  bad  fix,  and  in  reply  to  a 
question  put  by  the  prisoner  had  told  him  that  "  sometimes 
in  cases  of  assaidt  and 'battery  and  similar  cases  it  would  be 
best  to  plead  guilty ; "  whereupon  the  prisoner  confessed  his 
guilt.  On  the  trial  the  court  held  that  such  confession  was 
obtained  under  the  combined  influence  of  hope  and  fear,  and 
was  inadmissible.  In  the  case  of  Young  v.  State  *  two  persons 
who  were  charged  with  a  murder  then  recently  perpetrated 
were  taken  from  the  jail  by  a  body  of  armed  men,  and  hand- 
cuffed, chained  together  and  guarded,  and  carried  seven  miles 
into  the  country,  to  a  church  near  the  scene  of  the  murder ; 
the  crowd  in  the  meantime  having  doubled  in  size.  On 
arriving  at  the  church,  one  of  the  prisoners,  without  any 
solicitation,  so  far  as  was  shown,  asked  permission  to  have  a 
"■friendly"  talk  with  one  of  the  crowd,  whom  the  prisoner 
designated  by  name,  and  the  jjrivilege  having  been  granted 
by  the  leader,  the  prisoner,  together  Avith  tlie  party  selected 
by  him  and  one  of  the.  original  armed  guards,  went  a  short 
distance  into  the  woods,  where  the  prisoner  confessed  that  he 
assisted  in  killing  the  deceased,  and  shortly  afterwards  the 
other  prisoner  also  confessed  under  similar  circumstances. 
The  court  held  that  the  prisoners'  confessions  were  not  shown 

Mitchell,  117  Mass.  431  (1875)  ;  State  2  r,  Baxt.  (Tenn.)  244  (1873). 

V.  Carlisle,  57  Mo.  102  (1874).  3  69  Ala.  255  (1881). 

1  Speer  v.  State,  4  Tex.  App.  474  «  68  Ala.  569  (1881). 
(1879). 


554  HOMICIDE.  [chap.  XXIII. 

to  have  been  uninfluenced  by  their  surroundings,  suspicious 
and  nienacino'  in  their  character,  were  not  shown  to  have 
been  voluntary,  and  were  therefore  not  admissible  in  evi- 
dence. 

In  Cady  v.  State,^  where  the  prisoner,  after  his  arrest,  was 
tied  by  a  party  of  armed  negroes  and  taken  to  the  spot  where 
the  body  of  the  murdered  man  lay,  many  of  them  being 
excited  and  insisting  that  the  prisoner  should  be  hung,  and 
lie  thereupon  confessed,  the  court  held  that  the  confession 
was  admissible  in  evidence.^  In  Honeycutt  v.  State  ^  the 
prisoner,  who  was  accused  of  murder,  was  brought  hand- 
cuffed to  a  place  where  a  number  of  persons  and  relatives  of 
the  deceased  were  assembled,  and  was  there  threatened  with 
violence.  The  officer  assured  him  that  he  would  be  protected. 
His  confession,  made  while  he  was  handcuffed  and  after  the 
threat,  without  any  solicitation,  was  held  admissible. 

Sec.  504.  Same  —  Confessions  procured  by  artifice  and 
deception.  —  Confessions  procured  by  artifice  and  deception  are 
not  inadmissible  for  that  reason,  except  in  those  cases  where 
the  artifice  or  deception  was  such  as  is  calculated  to  produce 
an  untrue  confessit)n.^  The  question  in  all  such  instances  is 
whether  there  has  been  any  threat  or  promise  of  such  a  nature 
that  the  prisoner  would  be  likely  to  tell  an  untruth  from  fear 
of  the  threat,  or  because  of  hope  of  profit  from  the  promise.^ 

Sec.  505.  Same — Confession  to  clei-gymau.  —  Admis- 
sions or  confessions  made  to  a  clergyman  or  priest,  for  the 
sake  of  easing  the  culprit's  conscience,  and  made  to  such 
clergyman  or  priest  in  his  professional  character  in  the  course 
of  discipline  enjoined  by  his  church,  are  admissible  in  evidence 
in  a  case  of  homicide.^ 

144  Miss.  332  (1870).  (1857);    Price  v.  State,   18   Oiiio  St. 

2  See  State  v.  Ingram,  16  Kan.  14  418  (1868)  ;  Commonwealth  v.  Han- 
(1876).  Ion,    3    Brewst.     (Pa.)    461    (1870); 

3  8  Baxt.  (Tenn.)  371  (1875).  Wliart.  Cr.  Ev.  §  670. 

4  King  V.  State,  40  Ala.  314  (1867)  ;  '">  Keg.  i'.  Reason,  12  Cox  C.  C.  228 
State  V.  Staley,  14  Minn.  105  (18(i!t);  (1873). 

State  i;.  Fredericks,  85  Mo.  145  (1884);  «  People  v.  Gates,  13  Wend.  (N.  Y.) 

State  i;.  Hopkirk,  84  Mo.  278  (1884);  311    (1835).     See    Commonwealth    v. 

State  V.  Piielps,  74    Mo.  128  (1881);  Drake,  15  Mass.  161   (1818);  Rex  v. 

State   V.  Jones,  54   Mo.  478   (1874);  Gilliam,   1    Moo.   C.   C.    186    (1828); 

Balbo  V.  People,  80  N.  Y.  484  (1880);  Peake's  Evidence,  253. 
People    V.   McMahon,    15   N.    Y.   391 


SEC.  508.] 


WEIGHT   AND   SUFFICIENCY. 


bbo 


Sec.  506.    Same  —  Confessions  obtained  by  questioning-. 

—  Confessions  elicited  by  questions  put  by  persons  in  author- 
ity are  admissible  in  evidence.^  But  where  a  committing 
magistrate  compels  the  prisoner  to  answer  under  oath  ques- 
tions put  to  him,  the  admissions  made  by  him  during  such 
examination  are  not  admissible  in  evidence.^ 

Sec.  507.    Same  —  Confessions    during-    examination. — 

Confessions  made  in  the  course  of  a  legal  proceeding,  which 
have  no  reference  to  the  charge  upon  the  prosecution  of  which 
they  are  sought  to  be  used,  are  admissible  in  evidence  against 
the  person  making  them ;  ^  and  evidence  given  in  a  trial  for 
homicide  may  be  us_ed  as  a  confession  in  a  subsequent  trial 
for  the  same  offence.* 

Sec.  508.  Same  —  Confessions  inferred  wben.  —  The  con- 
duct or  demeanor  of  a  prisoner  on  being  charged  with  a  crime, 
or  upon  allusions  being  made  to  it  in  his  presence,  may  be 
given  in  evidence  against  him.^     If  the  prisoner  is  an  infant 


1  Carroll  v.  State,  23  Ala.  28  (185?.); 
State  V.  McLaughlin,  44  Iowa,  82 
(1876);  People  v.  Restell,  3  Hill 
(N.  Y.)  289  (1842)  ;  People. f.  Smith, 
1  Wheel.  Cr.  Cas.  (N.  Y.)  54  (1822)  ; 
State  V.  Cowan,  7  Ired.  (N.  C.)  L.  239 
(1847) ;  State  v.  Kirby,  1  Strobh. 
(S.  C.)  378  (1847)  ;  Wolf  v.  Common- 
wealth, 30  Gratt.  (Va.)  833  (1878); 
1  Greenl.  Ev.  (14th  ed.)  §  224 ;  Whart. 
Cr.  Ev.  (9th  ed.)  §  GOG.  See  ante, 
§§  500,  501. 

'■2  People  V.  Soto,  49  Cal.  G9  (1874); 
State  V.  Garvey,  25  La.  An.  191 
(1873)  ;  State  v.  Vandergraff,  '23  La. 
An.  96  (1871)  ;  State  v.  Gilman,  51 
Me.  206  (1862) ;  Hendrickson  v.  Peo- 
ple, 10  N.  Y.  12  (1854);  State  v. 
Marshall,  86  Mo.  400  (1865)  ;  State 
V.  Matthews,  66  N.  C.  106  (1872); 
State  V.  Broughton,  7  Ired.  (N".  C.) 
L.  96  (1846)  ;  State  v.  Young,  Winst. 
(N.  C.)  L.  126  (1868)  ;  Common- 
wealth r.  Harman,  4  Pa.  St.  269 
(1846)  ;  Nelson  v.  St.ate,  2  Swan 
(Tenn.)237  (1852);  Shoeffler  y.  State, 
3  Wis.  823  (1854);  United  States  v. 
Williams,  1  Cliff.  C.  C.  5  (18-58); 
United  States  i'.  Bascadore,  2  Cr.  C.  C. 


30  (1811)  ;  United  States  v.  Duffy,  1 
Cr.  C.  C.  164  (1804)  ;  Whart.  Cr.  Ev. 
(9th  ed.)  §  GGii.  Compare  Clough  v. 
State,  7  Neb.  320  (1878). 

3  Reg.  V.  Scott,  25  L.  J.  M.  C.  128 
(1856);  s.c.  7  Cox  C.  C.  164;  Dears 
&  B.  C.  C.  47. 

*  People  V.  Kelley,  47  Cal.  125 
(1873)  ;  Snyder  v.  State,  59  Ind.  105 
(1877) ;  Anderson  v.  State,  2G  Ind. 
89  (1866)  ;  State  v.  Gilman,  51  Me. 
206  (18(i2)  ;  Commonwealth  v.  Rey- 
nolds, 122  Mass.  454  (1877)  ;  Teach- 
out  V.  People,  41  N.  Y.  7  (1869); 
Hendrickson  v.  People,  10  N.  Y.  12 
(1854)  ;  s.c.  61  Am.  Dec.  721 ;  State 
V.  Broughton,  7  Ired.  (N.  C.)  L.  96 
(1846)  ;  Williams  v.  Commonwealth, 
29  Pa.  St.  102  (1857)  ;  Alston  i-.  State, 
41  Tex.  39  (1874)  ;  Dickerson  v. 
State,  48  Wis.  288.  (1879)  ;  s.c.  4 
N.  W.  Rep.  321.  Compare  People  r. 
Garvey,  25  La.  An.  191  (1873)  ;  Jack- 
son V.  State,  56  Miss.  311  (1879); 
Josephine  v.  State,  39  Miss.  613 
(1860). 

5  Lawson  v.  State,  20  Ala.  65 
(1852)  ;  State  v.  Welch,  7  Port.  (Ala.) 
463    (1838);    People    v.  Estrado,   49 


556 


HOMICIDE. 


[chap.  XXIII. 


under  the  age  of  fourteen  years,  it  must  be  affirmatively 
shown  that  he  had  sufficient  capacity  to  know  that  the  act  was 
wrong,  or  his  confession  will  not  be  admissible.^ 

Sec.  509.  Same  —  The  whole  confession  must  he  taken 
tog-ether.  —  In  the  admission  of  confessions  in  evidence  the 
whole  of  what  the  person  said  on  the  subject  at  the  time  of 
making  the  confession  must  be  taken  together,^  and  may  be 


Cal.  171  (1874)  ;  People  v.  Stanley,  47 
Cal.  113  (1874)  ;  Drumright  v.  State, 
29  Ga.  430  (1859)  ;  Slatteri/  v.  People, 
76  111.  217  (1875)  ;  s.c.  1  Am.  Cr.  Rep. 
29,  and  note  ;  Broyles  v.  State,  47  Ind. 
251  (1874) ;  State  v.  Pratt,  20  Iowa, 
267  (1866)  ;  Frost  v.  Commonwealth, 
9  B.  Mon.  (Ky.)  362  (1849)  ;  State  v. 
Johnson,  35  La.  An.  842  (1883)  ;  State 
V.  Reed,  62  Me.  129  (1874)  ;  Robinson 
V.  Blen,  20  Me.  109  (1841) ;  Batturs 
V.  Sellers,  5  Harr.  &  J.  (Md.)  117 
(1820)  ;  Commonwealth  v.  Brown,  121 
Mass.  69  (1876)  ;  McDonough  v.  Mc- 
Neil, 113  Mass.  96  (1873) ;  Common- 
wealth V.  Harvey,  67  Mass.  (1  Gray) 
487  (1854) ;  Commonwealth  v.  Ken- 
ney,  53  Mass.  (12  Mete.)  235  (1847)  ; 
Commonwealth  v.  Call,  38  Mass.  (21 
Pick.)  515  (1839) ;  Donnelly  r.  State, 
26  N.  J.  L.  (2  Dutch.)  463,  601  (1857)  ; 
Kelley  V.  People,  55  N.  Y.  565  (1874)  ; 
s.c.  14  Am.  Rep.  342;  McKee  v. 
People,  36  N.  Y.  113  (1867)  ;  Peo- 
ple V.  Green,  1  Park.  Cr.  Cas.  (N.  Y.) 
11  (1845)  ;  State  ;;.  Bowman,  80  N.  C. 
432  (1879)  ;  State  v.  Swink,  2  Dev.  & 
B.  (N.  C.)  L.  9  (1836)  ;  State  v.  Per- 
kins, 3  Hawks  (N.  C.)  L.  377  (1824)  ; 
Murphy  v.  State,  36  Ohio  St.  628 
(1881) ;  Ettinger  v.  Commonwealth, 
98  Pa.  St.  338  (1881)  ;  Noftsinger  v. 
State,  7  Tex.  App.  301  (1880)  ;  "Bow- 
den  V.  Johnson,  107  U.  S.  (17  Otto) 
262  (1882);  bk.  27  L.  ed.  386;  Ros- 
coe's  Cr.  Ev.  (10th  ed.)  50. 

1  Godfrey  r.  State,  31  Ala.  323 
(1858)  ;  State  v.  Fowler,  52  Iowa,  103 
(1879)  ;  Willet  v.  Commonwealth,  13 
Bush  (Ky.)  230  (1877);  Common- 
wealth V.  Mead,  92  Mass.  (10  Allen) 
398  (1865)  ;  State  r.  Aaron,  4  N.  J.  L. 
(1    South.)   231    (1818);   s.c.   7   Am. 


Dec.  592 ;  State  v.  Doherty,  2  Overt. 
(Tenn.)  80  (1806)  ;  State  v.  Learnard, 
41  Vt.  585  (1869). 

2  William  V.  State,  39  Ala.  532 
(1865)  ;  Corbett  v.  State,  31  Ala.  329 
(1858);  Frank  v.  State,  27  Ala.  37 
(1855)  ;  Chambers  v.  State,  26  Ala. 
59  (1855)  ;  People  v.  Gelabert,  39  Cal. 
663  (1870);  People  v.  Murphy,  39 
Cal.  52  (1869);  People  ;;.  Navis,  3 
Cal.  106  (1853);  Peterson  v.  State, 
47  Ga.  524  (1873)  ;  Long  v.  State,  22 
Ga.  40  (1857)  ;  State  v.  Elliott,  15 
Iowa,  72  (1863)  ;  State  v.  Isaac,  3  La. 
An.  359  (1848) ;  Commonwealth  v. 
Keyes,  77  Mass.  (11  Gray)  323  (1858)  ; 
Alfred  v.  State,  37  Miss.  296  (1859)  ; 
State  V.  Hollenscheit,  61  Mo.  302 
(1875)  ;  State  v.  Marten,  28  Mo.  530 
(1859)  ;  Green  v.  State,  13  Mo.  382 
(1850)  ;  Bower  v.  State,  5  Mo.  364 
(1838)  ;  Kelsey  v.  Bush,  2  Hill  (N.  Y.) 
440  (1842);  People  v.  Johnson,  2 
Wheel.  Cr.  Cas.  (N.  Y.)  377  (1824)  ; 
State  V.  Worthington,  64  N.  C.  594 
(1870)  ;  Crawford  v.  State,  4  Coldw. 
(Tenn.)  190  (1867) ;  Tipton  v.  State, 
Peck  (Tenn.)  308  (1824)  ;  Conner  v. 
State,  34  Tex.  659  (1871);  State  v. 
McDonnell,  32  Vt.  491  (1860)  ;  State 
V.  Mahon,  32  Vt.  241  (1859)  ;  Brown 
V.  Commonwealth,  9  Leigh  (Va.)  633 
(1838);  Griswold  v.  State,  24  Wis. 
144  (1869)  ;  United  States  v.  Prior,  5 
Cr.  C.  C.  37  (1836);  Respublica  v. 
McCarty,  2  U.  S.  (2  Dall.)  86  (1781)  ; 
bk.  1  L.  ed. ;  United  States  v.  Wilson, 
1  Baldw.  C.  C.  78  (1830);  Roscoe's 
Cr.  Ev.  (10th  ed.)  54.  Compare  Levi- 
son  V.  State,  54  Ala.  520  (1875)  ;  Mc- 
Cuiloch  V.  State,  48  Ind.  109  (1874)  ; 
Commonwealth  i-.  Pitsinger,  110  Mass. 
101  (1872). 


SEC.  510.] 


WEIGHT    AND    SUFFICIENCY, 


557 


evidence  for  the  prisoner  as  well  as  against  liim ;  yet  the  jury 
may,  if  they  think  proper,  believe  one  part  of  it  and  disbelieve 
another.^ 

Sec.  510.  Testimony  of  accomplice.  —  It  is  a  general  rule 
in  this  country,  as  Avell  as  in  England,  that  the  admission  of 
the  testimony  of  an  accomplice  rests  in  the  sound  discretion 
of  the  trial  judge.^  At  common  law,'^  and  in  some  of  the 
states,*  the  uncorroborated  testimony  of  an  accomplice  may 


1  Rex  V.  Clewes,  4  Car.  &  P.  221 
(1830)  ;  s.c.  19  Eng.  C.  L.  485.  See 
also  r^iland  v.  State,  52  Ala.  322 
(1875)  ;  People  ;■.  Wyman,  15  Cal. 
70  (18G0)  ;  State  v.  West,  1  Houst. 
Cr.  Cas.  (Del.)  .371  (1873)  ;  State  v. 
llolleiisdieit,  Gl  Mo.  302  (1875)  ;  Fox 
V.  Lniiibson,  8  N.  J.  L.  (3  Ha  1st.)  275 
(1820)  ;  Roberts  r.  Gee,  15  Barb. 
(\.  Y.)  440  (1853)  ;  Kelsey  r.  Biisli, 
2  Hill  (N.  Y.)  441  (1842)  ;  Blackbiirii 
V.  State,  23  Ohio  St.  14(3  (1872); 
Young  V.  State,  2  Yerg.  (Tenn.)  202 
(1829);  State  v.  Mahon,  32  Vt.  241 
(1859)  ;  Brown  v.  Commonwealth,  2 
Leigh  (Va.)  769  (1830)  ;  Griswold  v. 
State,  24  Wis.  144  (1809)  ;  Rex  r. 
Steptoe,  4  Car.  &  P.  307  (1830)  ;  s.c. 
10  Eng.  C.  L.  572. 

2  Commonwealth  v.  Brown,  130 
Mass.  279  (1881)  ;  People  v.  Whipple, 
9  Cow.  (N.  Y.)  707  (1827)  ;  Hawk. 
P.  C,  b.  2,  c.  46,  §  94.  Compare  Run- 
nels V.  State,  28  Ark.  121  (1873). 

3  State  V.  Stebbins,  29  Conn.  403 
(1801)  ;  Sumpter  r.  State,  11  Fla. 
247  (1867)  ;  Collins  v.  People,  98  111. 
584  (1881)  ;  .«!.c.  38  Am.  Rep.  105  ; 
Earll  V.  People,  73  111.  329  (1874)  ; 
Aycrs  r.  State,  88  IncL  275  (1882)  ; 
Johnson  v.  State,  65  Ind.  269  (1870)  ; 
Stocking  V.  State,  7  Ind.  326  (1855)  ; 
Dawley  v.  State,  4  Ind.  128  (1853)  ; 
Johnson  v.  State,  2  Ind.  652  (1851)  ; 
State  V.  Russell,  .33  La.  An.  1.35 
(1881);  Commonwealth  \.  Holmes,  127 
Mass.  424  (1870);  s.c.  .34  Am.  Rep. 
391,  note ;  People  r.  O'Brien,  60  Mich.  8 
(1886)  ;  s.c.  26  N.  W.  Rep.  795  ;  Ham- 
ilton V.  People,  20  Mich.  173  (1874)  ; 
Wliite  ?;.  State, -52  Mi.ss.  216  (1876); 
State  V.  Watson,  31   Mo.  361   (1861)  ; 


Olive  V.  State,  11  Neb.  1  (1881)  ;  s.c. 
7  N.  W.  ]?ep.  444 ;  State  v.  Hyer,  39 
N.  J.  L.  (10  Vr.)  598  (1877)  ;  Lindsay 
V.  People,  63  N.  Y.  143  (1875)  (this 
rule  is  now  changed  by  the  N.  Y. 
Penal  Code)  ;  I'eople  v.  Costello,  1 
Den.  (N.  Y.)  83  (1845)  ;  People  v. 
Ryland,  28  Hun  (N.  Y.)  508  (1883)  ; 
People  f.  Davis,  21  Wend.  (X.  Y.) 
313  (1839)  ;  State  v.  Holland,  83  N.  C. 
624  (1880)  ;  s.c.  -35  Am.  Rep.  587  ; 
Watson  V.  Commonwealth,  95  Pa.  St. 
418  (1880)  ;  State  v.  Potter,  42  Vt. 
495  (1869)  ;  Ingalls  v.  State,  48  Wis. 
647  (1879);  s.c.  4  N.  W.  Rep.  785; 
United  State  v.  Bicksler,  1  Maokey 
(D.  C.)  341  (1881)  ;  United  States  v. 
Neverson,  1  Mackey  (D.  C.)  152 
(1880);  Whart.  Cr.  Ev.  (0th  ed.) 
§  441.  Compare  Runnels  v.  State,  28 
Ark.  121  (1873). 

*  See  Hudspeth  v.  State,  50  Ark.  534 
(1888)  ;  s.c.  9  S.  W.  Rep.  1 ;  Bailey 
V.  State,  26  Tex.  App.  706  (1887)  ;  s.c. 
9  S.  \V.  Rep.  270. 

In  a  trial  for  murder,  where  there 
is  testimony  of  accomj)lice,  it  is  not 
error  for  the  court  to  refuse  to  charge 
the  jury  that,  if  they  believe  that 
such  witness  was  an  accomplice  in  the 
crime  'diarged  against  defendant,  they 
could  not  convict  upon  her  testimony, 
unless  the  crime  and  defendant's  guilt 
were  proven  by  other  evidence.  Hud- 
speth V.  State,  50  Ark.  •534;  s.c.  9 
S.  W.  Rep.  1. 

Evidence  that  a  conspiracy  was 
entered  into  by  defendant  and  others 
to  kill  deceased,  for  which  they  had  a 
motive  ;  that,  according  to  the  testi- 
n)ony  of  an  accomplice,  defendant 
procured   a  pistol,  waylaid    and    shot 


558 


HOMICIDE. 


[chap.  XXIII. 


be  sufficient  to  support  a  conviction;  but  in  many  of  the  states 
this  rule  has  been  changed  by  statute ;  ^  and  the  general 
rule  in  this  country  now  is  that  the  uncorroborated  evidence 
of  an  accomplice  is  not  sufficient  to  sustain  a  conviction.^ 
Such  evidence  is  to  be  received  with  great  caution,  and  should 
be  considered  in  the  light  of  the  circumstances  under  whicli 
it  is  given,  the  situation  of  the  witness,  and  his  temptations 
to  swear  falsely.^     It  is  not  necessary  that  the  corroborative 


deceased  at  night,  and  dragged  his 
body  out  of  the  road,  which  was  cor- 
roborated by  proof  of  defendant's 
clothing,  pools  of  blood,  and  other 
facts  ;  that  defendant  denied  a  few 
moments  after  tliat  he  heard  the  shots 
fired  ;  that  he  left  home  the  following 
morning  for  another  country,  is  suffi- 
cient to  sustain  a  conviction  of  mur- 
der in  the  first  degree.  Bailey  r.  State, 
26  Tex.  App.  700  (1887)  ;  9  S.  W. 
Rep.  270. 

1  Lumpkin  r.  State,  68  Ala.  56 
(1880);  Middlctnn  v.  State,  52  Ga. 
627  (1874)  ;  Childers  v.  State,  52  Ga. 
106  (1874)  ;  Bowling  v.  Common- 
wealth, 79  Ky.  004  (1881)  ;  People  v. 
Ryland,  28  Hun  (N.  Y.)  568  (1883)  ; 
State  V.  Odell,  8  Oreg.  30  (1879)  ; 
Hannahan  v.  State,  7  Tex.  App.  664 
(1880)  ;  Myers  v.  State,  7  Tex.  App. 
640  (1880)  ;  Heath  v.  State,  7  Tex. 
App.  404  (1880). 

2  Lumpkin  v.  State,  08  Ala.  56 
(1880)  ;  Marler  v.  State,  67  Ala.  55 
(1880)  ;  s.c.  08  Ala.  580  (1881)  ;  Flan- 
agin  V.  State,  25  Ark.  92  (1867); 
State  V.  Williamson,  42  Conn.  261 
(1861);  State  v.  Stebbins,  29  Conn. 
463  (1861)  ;  State  v.  Wolcott,  21  Conn. 
272  (1851)  ;  Sumpter  v.  State,  11  Fla. 
247  (1867)  ;  Powers  v.  State,  44  Ga. 
209  (1871)  ;  Collins  v.  People,  98  111. 
584  (1881);  s.c.  38  Am.  Rep.  105; 
Earll  V.  People,  73  111.  329  (1874)  ; 
Cross  V.  People,  47  111.  152  (1868)  ; 
Ulmer  v.  State,  14  Ind.  52  (1859)  ; 
State  V.  Moran,  34  Iowa,  453  (1872)  ; 
State  V.  Thornton,  20  Iowa,  79  (1868)  ; 
State  V.  Schlagel,  19  Iowa,  169  (1865)  ; 
State  i'.  Kcllerman,14  Kan.  135  (1875)  ; 
Craft  1-.  State,  3  Kan.  450  (1866)  ; 
Craft   V.  Commonwealth,  80  Ky.  349 


(1882)  ;  Bowling  v.  Commonwealth, 
79  Ky.  604  (1881)  ;  State  v.  Bayonne, 
23  La.  An.  78  (1871);  Hamilton  v. 
People,  29  Mich.  173  (1874)  ;  State 
V.  Litchfield,  58  Me.  267  (1870)  ;  State 
V.  Cunningham,  31  Me.  355  (1850)  ; 
Commonwealth  v.  Holmes,  127  Mass. 
424  (1879) ;  s.c.  34  Am.  Rep.  391 ; 
Commonwealth  v.  Scott,  123  Mass. 
222  (1877)  ;  Commonwealth  v.  Snow, 
111  Mass.  411  (1873)  ;  Commonwealth 
V.  Price,  76  Mass.  (10  Gray)  472 
(1858)  ;  Commonwealth  v.  Bosworth, 
39  Mass.  (22  Pick.)  397  (1839)  ;  Peo- 
ple V.  Schweitzer,  23  Mich.  301  (1871)  ; 
People  V.  Jenness,  5  Mich.  305  (1858)  ; 
Hughes  V.  State,  58  Miss.  355  (1880)  ; 
Fitzcox  V.  State,  52  Miss.  923  (1877)  ; 
White  V.  State,  52  Miss.  210  (1870)  ; 
George  v.  State,  39  Miss.  570  (1800)  ; 
State  V.Jones,  04  Mo.  391  (1877);  State 
V.Watson,  31  Mo.  301  (1801);  State 
V.  Hyer,  39  N.  J.  L.  (10  Vr.)  598 
(1877)  ;  Linsday  v.  People,  63  N.  Y. 
143  (1875)  ;  People  v.  Evans,  40  N.  Y. 
1  (1809)  ;  Dunn  v.  People,  29  N.  Y. 
523  (1804)  ;  People  v.  Costello,  1  Den. 
(N.  Y.)  83  (1845)  ;  Coates  v.  People, 
4  Park.  Cr.  Cas.  (N.  Y.)  002  (1800)  ; 
State  V.  Holland,  83  N.  C.  024  (1880)  ; 
s.c.  35  Am.  Rep.  587  ;  Allen  v.  State, 
10  Ohio  St.  287  (1859);  Carroll  v. 
Commonwealth,  84  Pa.  St.  107  (1877)  ; 
State  V.  Brown,  3  Strobh.  (S.  C.)  L. 
508  (1849)  ;  Harrison  v.  State,  17  Tex. 
App.  442  (188,5);  ZoUicoffer  c.  State, 
10  Tex.  App.  312  (1885);  State  v. 
Howard,  32  Vt.  380  (1859);  Brown 
V.  Commonwealth,  2  Leigh  (Va.)  709 
(1830) ;  Whart.  Cr.  Ev.  §  441. 

^  See  George  v.  State,  39  Miss.  570 
(1800)  ;  State  v.  Walker,  98  Mo.  95 
(1888);  s.c.  9  S.  W.  Rep.  047;  Wil- 


SEC.  512.] 


WEIGHT    AND    SUFFICIENCY. 


559 


evidence  .should  be  such  of  itself  as  to  warrant  a  conviction ;  ^ 
but  it  must  be  evidence  tending  to  connect  the  accused  with 
the  commission  of  the  offence.^ 

Sec.  511.  Proving  self-defence.  —  The  question  as  to  the 
sufficiency  of  evidence  adduced  to  prove  that  the  homicide 
was  committed  in  self-defence,  is  one  to  be  determined  by 
the  jury  in  each  particular  case.  But  it  may  be  generally 
stated  that  the  defendant  need  not  show  either  beyond  a 
reasonable  doubt  or  by  a  preponderance  of  proof  that  he 
killed  the  deceased  in  self-defence ;  it  is  sufficient  if  the  evi- 
dence to  that  effect  raises  a  reasonable  doubt  in  the  minds  of 
the  jury.^ 

Sec.  512.  Proving  alibi.*  —  Where  the  defendant  seek 
to  prove  an  alibi.,  he  need  not  do  more  than  raise  a  reasonable 
doubt  in  the  minds  of  the  jurors  whether  he  is  the  slayer,^ 
and  evidence  tending  to  show  an  alibi  is  proper  to  go  to  the 
jur}^  without  regard  to  its  probable  weight  or  sufficiency, 


liams  V.  State,  15  Tex.  App.  401 
(1884). 

An  instruction  that  the  testimony 
of  accomplices  should  be  carefully 
scrutinized,  and  that  unless  corrobo- 
rated by  other  witnesses,  especially  as 
to  the  identity  of  the  accused  as  the 
person  against  whom  the  accomplices 
have  testified,  such  testimony  is  suffi- 
cient to  convict,  is  correct;  as  such 
an  instruction  sufficiently  presents 
the  necessity  for  corroboration  upon 
the  question  of  identity.  State  v. 
Walker,  98  Mo.  98  (1888)  ;  s.c.  9  S.  W. 
Rep.  647. 

1  Lumpkin  v.  State,  08  Ala.  56 
(1880)  ;  Marler  v.  State,  67  Ala.  55 
(1880)  ;  Lockett  v.  State,  63  Ala.  5 
(1879)  ;  Smith  v.  State,  59  Ala.  104 
(1887)  ;  State  v.  Stebbins,  20  Conn. 
46.3  (1861)  ;  Partee  v.  State,  67  Ga. 
570  (1881)  ;  State  v.  Russell,  33  La. 
An.  135  (1881);  State  v.  Litchfield, 
58  Me.  267  (1870)  ;  Commonwealth 
V.  Hayes,  140  Mass.  .366  (1886)  ;  s.c. 
5  N.  E.  Rep.  264;  Commonwealth  v. 
Bosworth,  39  Mass.  (22  Pick.)  397 
(18.39) ;  State  v.  Watson,  31  Mo.  361 
(1861);  People  v.  Costello,  1  Den. 
(N.  Y.)  83  (1845)  ;  Watson  v.  Com- 


monwealth, 95  Pa.  St.  418  (1880)  ; 
State  V.  Potter,  42  Vt.  495  (1869). 
Compare  State  v.  Allen,  57  la.  431 
(1881);  People  v.  Evans,  40  N.  Y.  1 
(1869)  ;  United  States  v.  Harries,  2 
Bond.  C.  C.  311  (1869). 

2  Marler  v.  State,  67  Ala.  .55  (1880); 
State  I'.  Allen,  -57  Iowa,  431  (1881)  ; 
State  V.  Hennessey,  55  Iowa,  299 
(1880)  ;  State  v.  Thornton,  26  Iowa, 
80  (1868)  ;  Commonwealth  v.  Holmes, 
127  Mass.  424  (1879)  ;  s.c.  34  Am. 
Rep.  391 ;  State  v.  Hyer,  39  N.  J.  L. 
(10  Vr.)  598  (1877)  ;  People  v.  Court- 
ney, 28  Hun  (N.  Y.)  589  (1883)  ;  Peo- 
ple V.  Davis,  21  Wend.  (N.  Y.)  309 
(1839) ;  Watson  v.  Commonwealth, 
95  Pa.  St.  418  (1880)  ;  Kilrow  r.  Com- 
monwealth, 39  Pa.  St.  480  (1879); 
Coleman  v.  State,  44  Tex.  109  (1877)  ; 
Cohea  v.  State,  11  Tex.  App.  622. 

3  State  r.  Porter,  34  Iowa,  131 
(1871)  ;  s.c.  1  Gr.  Cr.  Pep.  241 ;  Mc- 
Kenna  r.  State,  61  Miss.  589  (1884). 
See  Commonwealth  r.  Drum,  58  Pa. 
St.  9  (1868). 

*  See  post,  §  522. 

5  French  v.  State,  12  Ind.  670 
(1859)  ;  .s.c.  74  Am.  Dec.  229. 


560  HOMICIDE.  [chap.  XXIII. 

where  the  evidence  of  the  crime  is  circumstantial,  or  not 
clear  and  j^ositive  as  to  the  defendant's  identity  with  the  slayer. 

In  the  case  of  Turner  v.  Commonwealth,^  on  a  trial  for 
murder,  an  instruction  that  if  the  jury  did  not  think  an  alibi 
had  been  proved,  "■  the  attempt  to  manufacture  evidence  was 
a  circumstance  which  always  bore  against  the  person  making 
it."  This  was  plainly  erroneous.  Where  the  case  rests  wholly 
upon  circumstantial  evidence,  the  evidence  of  the  alibi^  though 
not  clear,  should  be  submitted  to  the  jury  as  a  matter  of  de- 
fence. 

Sec.  513.  Proving  insanity.  —  The  question  as  to  the 
sufficiency  of  the  proof  of  insanity  which  must  be  adduced, 
and  as  to  the  effect  which  it  must  produce  on  tlie  jury  in 
order  to  justify  a  verdict  of  acquittal,  is  not  universally 
settled.  The  adjudications  upon  the  subject  may  properly  be 
divided  into  three  classes,  as  follows ;  first,  it  has  sometimes 
been  maintained  that  the  defendant  has  not  the  burden  of 
proof,  and  that  the  presumption  of  sanity  only  arises  in  the 
absence  of  all  evidence  to  the  contrary ;  but  that  his  only 
duty  is  to  introduce  evidence  tending  to  cast  uncertainty 
upon  the  question  and  thereby  to  raise  in  the  minds  of  the 
jury  a  reasonable  doubt  as  to  his  sanity;  and  that  such 
reasonable  doubt  is  a  sufficient  gi'ound  for  acquittal,  unless 
ovei-come  by  affirmative  proof  of  his  sanity  adduced  by  the 
prosecution.^      Second,    in    other   states    it   is    the   declared 

1  86  Pa.  St.  54  (1878)  ;  s.c.  27  Am.  State,  37  Miss.  383  (1859)  ;  Hau-e  v. 
Rep.  083.  State,  11  Neb.  537  (1881)  ;  s.c.  38  Am. 

2  See  Chase  v.  People,  40  111.  352  Rep.  375-  10  N.  W.  Rep.  452;  Wright 
(ISfifi)  ;  Hopps  V.  People,  31  111.  385  v.  People,  4  Neb.  409  (1876)  ;  State  v. 
(1863)  ;  s.c.  83  Am.  Dee.  231;  Law.  Bartlett,  43  N.  H.  224  (1861);  s.c.  2 
Insaii.  444,  overruling  Fisher  r.  Peo-  Or.  Def.  480;  State  v.  Jones,  50  N.  H. 
pie,  23  111.  283  (1800)  ;  Giwtiq  v.  State,  369  (1871)  ;  s.c.  9  Am.  Rep.  242;  17 
06  Inrl.  94  (1879);  s.c.  .32  Am.  Pop.  N.  W.  Rep.  911 ;  2  Or.  Def.  64 ;  O'Con- 
99;  Lnw.  Insan.  455;  Greenley  v.  veil  v.  People,  S7  ^.Y.ii77  (ISS2)  ;  s.c. 
State,  60  Ind.  141  (1877);  Sierrns  v.  41  Am.  Rep.  379;  Brotherton  v.  People, 
Slate,  31  Ind.  485  (1869)  ;  s.c.  99  Am.  75  N.  Y.  159  (1878)  ;  s.c.  3  Am.  Or. 
Dec.  634;  Polk  r.  State,  19  Ind.  170  Rep.  218;  People  y.  Me(^anii,  16  N.  Y. 
(1802);  State  v.  Mahn,  25  Kan.  182  58  (1857);  s.c.  69  Am.  Dec.  642;  Law. 
(1881)  ;  State  v.  Crnwfhrd,  11  Kan.  32  Fnsan.  490;  Wa.ffner  v.  People,  4  Abb. 
(1873)  ;  s.c.  2  Gr.  Cr.  Hep.  638;  Law.  App.  Dec.  (N.  Y.)  509  (1866)  ;  Dove 
Iiisan.  459;  State  v.  Reddick,  7  Kan.  v.  State,  3  Heisk.  (Tenn.)  348  (1872); 
144  (1871);  C'inninr/hain  v.  State,  56  s.c.  1  Gr.  Cr.  Rep.  760;  Law.  Insan. 
Miss.  269  (1879);  s.c.  31  Am.  Rep.  502;  Lawless  i;.  State,  4  Lea  (Tenn.) 
361);  Law.  Insan.  470;  Russell  v.  State,  179  (18.")9). 

53     Miss.   367    (1876);    Newcomb   v.  In    Ciiase    v.   People,   40   111.   352 


SEC.  513.] 


WEIGHT   AND   SUFFICIENCY. 


5G1 


doctrine  that  insanity  must  be  proved  by  the  defence'  beyond 
a  reasonable  doubt.^  Third,  the  more  modern  doctrine  is 
that  the  defendant  has  the  burden  of  proof,  yet  he  may 
establisli  his  insanity  by  a  preponderance  of  evidence,  or  by 
any  evidence  which  satisfies  the  jury  that  he  is  insane,  thus 
regarding  the  same  measure  of  proof  necessary  as  in  civil 
causes.  This  rule  is  undoubtedly  the  law  in  most  of  the 
states  at  the  present  time,  and  is  supported  by  the  great 
weight  of  authority.^ 


(1806)  tlie  court,  explaining  Hopps  v. 
People,  ;31  111.  885  (18(53),  say  :  "  What 
we  designed  to  say  in  this  case  was 
simply  this,  that  sanity  is  an  ingre- 
dient in  the  crime  as  essential  as  the 
overt  act,  and  if  sanity  is  wanting 
there  can  be  no  crime,  and  if  the  jury 
entertain  a  reasonable  doubt  on  the 
question  of  insanity,  the  prisoner  is 
entitled  to  the  benefit  of  the  doubt. 
We  wish  to  be  understood  as  saying 
in  the  case  that  the  burden  of  proof 
is  on  the  precaution  to  prove  guilt  be- 
yond a  reasonable  doubt,  whatever  the 
defence  may  be.  If  insanity  is  relied 
upon,  anil  evidence  given  tending  to 
establish  that  unfortunate  condition 
of  tlie  mind,  and  a  reasonable  well- 
formed  doubt  is  thereby  raised  of  the 
sanity  of  the  accused,  every  principle 
of  justice  and  humanity  demands  that 
the  accused  shall  have  the  benefit  of 
the  doubt.  We  do  not  desire  to  be 
understood  as  holding  the  prosecution 
to  the  proof  of  sanity  in  any  case,  but 
we  do  hold,  where  evidence  of  insanity 
lias  been  introduced  by  the  accused, 
a!id  a  reasonable  doubt  of  his  sanity 
is  thereby  created,  the  accused  cannot 
be  convicted  of  the  crime  charged. 
We  deem  it  necessary  to  say  this 
much  in  explanation  of  the  ruling  in 
the  case  of  Hopps,  as  some  expres- 
sions used  therein  may  have  a  ten- 
dency to  mislead." 

1  State  V.  West,  1  Houst.  Cr.  Cas. 
(Del.)  371  (1873)  ;  State  v.  Pratt,  1 
Houst.  Cr.  Cas.  (Del.)  240  (1807)  ; 
s.c.  2  Cr.  Def.  331;  State  v.  Daiiby,  1 
Houst.  Cr.  Cas.  (Del.)  166  (1804)  ;  's.c. 
2  Cr.  Def.  327 ;  State  v.  Spencer,  21 

36 


N.  J.  L.  (1  Zab.)  196  (1846)  ;  .s.c.  2 
Cr.  Def.  335;  State  v.  Colemen,  20 
S.  C.  441  (1883).  Compare  State  v. 
Martin,  3  Cr.  L.  Mag.  (N.  J.)  44 
(1881);  Graves  f.  State, 45  N.  J.  L.  (16 
Vr.)  347  (1883)  ;  s.c.  40  Am.  Rep.  778. 
2  See  Ford  v.  State,  71  Ala.  385; 
Boswell  V.  Suite,  63  Ala.  307  (1879) ; 
s.c.  35  Am.  Hep.  20;  2  Cr.  Def.  352; 
State  V.  Mmier,  2  Ala.  43  (1841)  ;  s.c. 
36  Am.  Dec.  398;  2  Cr.  Def.  .346; 
Casat  V.  State,  40  Ark.  511  (1883)  ; 
People  V.  Myers,  20  Cal.  518  (1862)  ; 
State  V.  Trout,  74  Iowa,  545  (1888) ; 
s.c.  38  N.  W.  Rep.  405;  State  v.  Felter, 
32  Iowa,  49  (1871)  ;  s.c.  2  Cr.  Def. 
371;  Kriel  v.  Commonwealth,  5  Bush 
(Ivy.)  363  (1869)  ;  s.c.  2  Cr.  Def.  379; 
Graham  r.  Commonwealth,  16  B.  Mon. 
(Ky.)  587  (1855)  ;  s.c.  2  Cr.  Def.  373; 
State  V.  Lawrence,  57  Me.  574  (1870)  ; 
s.c.  2  Cr.  Def.  386 ;  State  v.  Reidmier, 
71  Mo.  173  (1879)  ;  s.c.  36  Am.  Rep. 
462;  8  Mo.  App.  1 ;  2  Cr.  Def.  424; 
1  Cr.  L.  Mag.  456;  State  v.  Simms,  68 
Mo.  305  (1878);  State  v.  Smith,  53 
Mo.  267  (1873);  s.c.  2  Cr.  Def.  413; 
State  (,'.  Hundley,  46  Mo.  414  (1870) ; 
s.c.  2  Cr.  Def.  417 ;  State  i-.  Klinger, 
43  Mo.  127  (1868)  ;  s.c.  2  Cr.  Def. 
410;  State  v.  McCoij,  34  Mo.  531 
(1864)  ;  s.c.  86  Am.  i)ec.  121 ;  2  Cr. 
Def.  408;  Baldwin  v.  State,  12  Mo. 
223  (1848)  ;  s.c.  2  Cr.  Def.  395 ;  Loeff- 
ner  v.  State,  10  Ohio  St.  599  (1857)  ; 
s.c.  2  Cr.  Def.  4.32  ;  Graves  v.  State,  45 
N.  J.  L.  (16  Vr.)  347  (1883)  ;  s.c.  46 
Am.  Rep.  778;  Coi/ley.  Commonwealth, 
100  Pa.  St.  573  (1882)  ;  s.c.  4  Cr.  L. 
Mng,  7(i ;  45  Am.  Rep.  397  ;  2  Cr.  Def. 
441 ;  Meyers  v.  Commonwealth,  83  Pa. 


562  HOMICIDE.  [chap.  xxiu. 

Sec.  514.  Same  —  Sufficiency  of  evidence.  —  What  evi- 
dence is  sufficient  to  show  insanity  or  hick  of  sound  mind,  is 
usually  a  question  to  be  determined  by  the  jury  according  to 
the  circumstances  of  the  particular  case,  and  no  one  fact  or 
group  of  facts  can  be,  as  a  matter  of  law,  conclusive  proof  of 
insanity.^  Thus  it  has  been  said  that  an  order  of  a  lunacy 
commission  admitting  the  prisoner  to  an  insane  asylum  is  not 
conclusive  of  his  insanity  on  a  trial  for  murder.^ 

In  the  case  of  Masscngale  v.  State  ^  the  defendant,  living 
on  the  premises  of  tlie  deceased  and  employed  by  him  as  a 
laborer,  while  sowing  cotton  seed,  was  told  by  the  deceased 
that  he  Avas  making  too  many  skips.  In  half  an  hour  the 
defendant  left  his  work,  went  to  his  house,  came  back  with  a 
pistol,  muttering  and  swearing,  and  shot  the  deceased.  For 
months  the  neighbors  noticed  a  mental  change  in  the  defend- 
ant, and  it  was  rumored  that  lie  was  going  crazy.  The 
deceased  had  stated  that  he  thought  him  crazy,  and  so  said 
when  he  saw  him  with  the  pistol  before  the  killing.  The 
defendant,  after  the  homicide,  remained  in  the  vicinity  from 
ten  o'clock  in  the  morning  and  at  night  went  to  his  house  and 
went  to  bed.  The  court  held  that  from  the  fact  that  there 
was  neitlier  motive,  threats,  nor  express  malice,  and,  from  all 
the  circumstances,  the  defence  of  insanity  was  sustained. 
But  in  the  case  of  State  v.  George,'*  evidence  that  defendant 
had  been,  for  some  four  years,  subject  to  irregular  epileptic 
fits  of  greater  or  less  duration,  was  held  not  sufficient  evi- 
dence of  insanity  to  relieve  him  from  liability  for  homicide. 


St.  131   (1870);   s.c.  2  Cr.  Dcf.  340;  Law.  Insaii.  835;   Clarke   v.  Stato,  8 

Brown  v.  Commonwealth,  78  Pa.  St.  Te.N.  App.  350  (1880);  State  v.  Cole- 

122  (1875);   Ortwein  v.  Commomvealt/i,  man,  20  S.  C.  441  (1883). 

76    Pa.    St.  414   (1874);    s.c.  18  Am.  i  See  Goodwin  i'.  State,  9«)  Ind.  550 

Rep.  420 ;  1  Am.  Cr.  Kep.  297 ;  2  Cr.  (1884)  ;  Guetig  r.   State,  06   Ind.   04 

Def.  438 ;   Carter  v.  Stale,  12  Tex.  500  (1879)  ;    s.c.  32    Am.  Rep.  90 ;    Law. 

(1854);   s.c.  02  Am.   Dec.  539;   Law.  Insan.  455;  State  i'.  George,  02  Iowa, 

Insan.  588;    Massengale    v.   State,  24  682   (1883);   Massengale  v.  State,  24 

Tex.  App.   181    (1888);    s.c.  6   S.  W.  Tex.  App.  181   (1888);    s.c.  0   S.  W. 

Rep.  35;  Smith  v.  State,  19  Tex.  App.  Rep.  35. 

95    (1880)  ;    Jones    v.   State,  13    Tex.  -'  Goodwin    i-.    State,   90    Ind.    550 

App.  1   (1883)  ;  Johnson  v.  State,  10  (1884). 

Tex.  App.  571  (1881);  King  v.  State,  «  24  Tex.  App.  181   (1888);  s.c.  6 

9  Tex.   App.    515    (1881)  ;    Webb   v.  S.  VV.  Rep.  35. 

State,  9   Tex.  App.  490  (1881)  ;   s.c.  *  62  Iowa,  682. 


CHAPTER   XXIV. 

EVIDENCE  —  defendant's    GUILT    UPON    WHOLE    EVIDENCE. 

Sec.  515.  Direct  evidence. 

Sec.  510.  Circumstantial  evidence. 

Sec.  517.  Same  —  Possession  of  stolen  property. 

Sec.  518.  Same  —  Establisiiing  facts  by  competent  evidence. 

Sec.  519.  Doctrine  of  reasonable  doubt. 

Sec.  520.  Same  —  Proof  of  material  facts  charged  —  Instructions. 

Sec.  521.  Same  —  The  "  Anarchists' Case." 

Sec.  522.  Same  —  Proving  a//i('. 

Sec.  515.  Direct  evidence.  —  In  cases  of  homicide,  espe- 
cially those  involving  the  life  of  the  person  charged,  it  is 
always  more  satisfactory  if  the  guilt  of  the  defendant  is 
established  Ijy  the  testimony  of  eyewitnesses  to  the  act  or 
acts  causing  death,  or  to  other  acts  or  occurrences  showing 
the  defendant's  guilt.  But  direct  evidence  as  well  as  circum- 
stantial may  be  unsatisfactory ;  and  it  is  solely  and  exclu- 
sively for  the  jury  to  weigh,  and  to  determine  its  credibility 
and  its  sufficiency  as  best  they  may,  taking  into  consideration 
anything  which  may  aid  them  in  arriving  at  a  satisfactory 
conclusion,  or  supply  to  them  the  criterion  or  standard  by 
which  to  judge. ^ 

1  See  Cross  v.  State,  68  Ala.  47G  N.   C.  469   (1887)  ;  s.c.   1  S.  E.   Rep. 

(1881)  ;  People  v.  Goslaw,  78  Cal.  :]23  680;    People  v.  Lyons,  110  N.  Y.  618 

(1887);    Weeks    v.   State,   79  Ga.  36  (1888);    s.c.  10  Cr.  L.   lAJag.  690;  17 

(1887);  s.c.  8  S.  E.  Rep.  323;  Moon  N.  E.  Rep.  391;  People  v.  Cignarale, 

r.  State,  68  Ga.  687  (1882);  Mitchum  110  N.  Y.  23    (1888);    s.c.   17   N.  E. 

r.   State,   11    Ga.    615    (1852)  ;  West-  Rep.  135;  People  r.  Willson,  109  N.  Y. 

brook  r.  People,  126  111.  81    (1888);  345  (1888),    s.c.  16  N.  E.  Rep.  540; 

s.c.    18    N.    E.    Rep.    304  ;    Grady   v.  Alexander  ;;.  State,  25  Tex.  Ajip.  260 

People,  125  111.  122    (1888)  ;    s.c.  16  (1888)  ;  s.c.  7  S.  W.  Rep.  867 ;  Heard 

N.  E.  Rep.  654;  Roberts  v.  Common-  v.  State,  24  Tex.  App.  103  (1888);  s.c. 

wealth,  8  S.  W.  Rep.  (Ky.)  270  ;  Pitts  5  S.  W.  Rep.  846  ;  Gibson  i'.  State,  23 

r.  State,  43  Miss.  472  (1870)  ;  State  v.  Tex.  App.  414    (1887)  ;  s.c.  5  S.   W. 

Jackson,  95   Mo.  627    (1888);    s.c.  8  Rep.  314;    Holmes  v.  State,   11    Tex. 

S.  W.  Rep.  749;  Territory  v.  Adolf-  App.  223  (1882);  Kemp  v.  State,  11 

son,  5  Mont.  Tr.  237    (1884);    s.c.  5  Tex.  App.  174  (1882). 
Pac.   Rep.   254;    State    v.   Jones,   97 

563 


564 


HOMICIDE. 


[chap.  XXIV. 


It  is  not  necessary,  as  a  matter  of  law,  that  the  testimony 
of  a  single  eyewitness  to  the  crime  be  corroborated ;  ^  but 
where  the  life  or  liberty  of  the  defendant  is  made  to  depend 
upon  the  unsupported  assertion  of  a  single  person,  great  care 
should  be  exercised  in  the  consideration  of  such  evidence.^ 

Sec.  516.  Circumstantial  evidence.  —  Except  as  other- 
wise provided  in  some  jurisdictions  as  to  proof  of  the  corpus 
delicti^  circumstantial  evidence  may  constitute  proof  sufficient 
to  authorize  a  conviction  for  homicide  even  where  it  involves 
the  life  of  the  person  charged,  but  it  should  always  be  received 
and  weighed  with  great  caution,  and  should  only  be  accepted 
as  conclusive  where  it  excludes  all  hypotheses  inconsistent 
with  the  theory  of  the  defendant's  guilt,  and  establishes  it  to  a 
reasonable  certainty."    Thus  two  boys,  each  with  a  dog  and 


1  McLaiu  V.  State,  99  Fa.  St.  86 
(1881). 

In  People  v.  WiUson,  109  N.  Y.  345 
(1888);  s.c.  10  N.  E.  Rep.  540,  it 
appeared  that  defendant  liad  lived 
unhappily  with  his  wife,  and  had 
threatened  her  life;  that  he  was  in- 
fatuated with  another  woman,  and 
after  being  witli  her  until  two  o'clock 
one  morning  went  directly  home,  and 
shortly  afterwards  returned  in  eager 
haste,  and  informed  her  of  his  wife's 
death.  The  wife  had  been  in  good 
health,  and  an  autopsy  pointed  to 
death  from  asphyxia.  A  witness  of 
unimpeached  character  testified  that 
defendant  confessed  to  him  that  he 
had  suffocated  his  wife.  Held,  that  a 
verdict  of  murder  in  the  first  degree 
was  not  against  the  weiglit  of  evi- 
dence. 

Wiiere  on  a  trial  for  murder, 
one  witness  testified,  "  that  j)risoner 
stooped  down,  and  as  witness  heard  a 
rattling  on  the  floor  and  did  not  see 
the  knife  afterwards,  he  sujjposed 
that  prisoner  picked  it  up.  Prisoner 
rose  with  a  six-barrelled  pistol  in  iiis 
hand,  presented  it  at  the  breast  of  de- 
ceased, not  more  than  six  inches  dis- 
tant, took  deliberate  aim,  long  enough 
to  count  ten  or  fifteen,  before  he  fii-eil. 
He  fire<l  the  pistol  about  tlie  right 
nipple.     Deceased   brought   a   groan. 


his  face  contracted,  fell  upon  the 
floor,  and  in  about  five  minutes  ex- 
pired," it  was  held  that  the  killing 
was  sufficiently  proved.  Mitchum  v. 
State,  11  Ga.  615  (1852). 

'-^  See  Territory  v.  Adolf  son,  5 
Mont.  Tr.  237  (1884)  ;  s.c.  5  Pac.  Rep. 
254. 

3  Johnson  v.  State,  18  Tex.  App.  885 
(1885).  See  West  v.  State,  76  Ala. 
98  (1884)  ;  Overman  v.  State,  49  Ark. 
364  (1887);  s.c.  5  S.  W.  Rep.  588; 
Green  v.  State,  38  Ark.  304  (1881)  ; 
Davis  V.  State,  74  Ga.  869  (1885)  ; 
Marshall  v.  State,  74  Ga.  26  (1884)  ; 
Watt  V.  People,  126  111.  9  (1888) ;  s.c. 
18  N.  E.  Rep.  340;  Swigar  v.  State, 
109  111.  272  (1884)  ;  Otmer  v.  People, 
76  111.  149  (1875) ;  State  v.  Smith,  73 
Iowa,  32  (1887)  ;  s.c.  34  N.  W.  Rep. 
597 ;  Commonwealth  v.  Rohinaon,  146 
Mass.  571  (1888)  ;  s.c.  10  Cr.  L.  Mag. 
544;  16  N.  E.  Rep.  452;  Common- 
wealth V.  Webster,  59  Mass.  (5  Gush.) 
295  (1850);  s.c.  52  Am.  Dec.  711; 
State  V.  Johnson,  37  Minn.  493  (1887)  ; 
s.c.  35  N.  W.  Rep.  373;  Jones  v. 
State,  57  Miss.  684  (1880)  ;  Caseij  v. 
Slate,  20  Neb.  138  (1886)  ;  s.c.  8  Or. 
L.  Mag.  597;  29  N.  W.  Rep.  264; 
People  !'.  Reich,  110  N.  Y.  060 
(1888)  ;  s.c.  18  N.  E.  Rep.  104;  People 
V.  Heckwith,  108  N.  Y.  67  (1888)  ;  s.c. 
15   N.   E.  Rep.  53;   Yates  v.  People, 


SEC.  516.]  GUILT   UPON   WHOLE   EVIDENCE. 


665 


gun,  went  into  the  woods  together  and  the  elder  returned 
alone,  much  agitated,  and  told  contradictory  stories.  There  was 
blood  on  his  clothing.    The  body  of  the  younger  boy  was  found 


32  N.  Y.  509  (1865)  ;  State  v.  Brewer, 
98  N.  C.  607  (1887)  ;  s.c.  3  S.  E.  Kep. 
819 ;  State  v.  Harrison,  5  Jones  (N.  C.) 
L.  115  (1857)  ;  State  v.  Anderson,  10 
Greg.  418  (1882)  ;  Henry  v.  State,  11 
Hmnpli.  (Tenn.)  224  (1850)  ;  Poe  v. 
State,  10  Lea  (Tenn.)  673  (1882); 
Rather  v.  State,  25  Tex.  App.  623 
(1888)  ;  s.c.  9  S.  W.  Rep.  69 ;  Olivares 
V.  State,  23  Tex.  App.  305  (1887)  ;  s.c. 
4  S.  W.  Rep.  903 ;  Scott  v.  State,  23 
Tex.  App.  452  (1887)  ;  s.c.  5  S.  W. 
Rep.  189 ;  Lane  v.  State,  19  Tex.  App. 
54  (1886)  ;  Gomez  v.  State,  15  Tex. 
App.  327  (1884) ;  Hogan  v.  State,  13 
Tex.  App.  319  (1883)  ;  Pogue  i:  State, 
12  Tex.  App.  283  (1883)  ;  Jackson  r. 
State,  9  Tex.  App.  114  (1881)  ;  Harri- 
son V.  State,  0  Tex.  App.  42  (1879) ; 
Sutton  V.  Comnionwealtli,  7  S.  E.  Rip. 
(Va.)  323;  Russell  y.  Conimonwealtli, 
78  Va.  400  (1884)  ;  Hatchett  r.  Com- 
monwealth, 76  Va.  1026  (1882)  ;  Dean 
V.  Commonwealtli,  .■>2  Gratt.  (\^t.) 
912  (1879)  ;  Miller  r.  Territory,  3 
Wash.  Tr.  -554  (1888);  s.c.  19  Pac.  IRep. 
50;  Timmerman  v.  Territory,  3  Wash. 
Tr.  445  (1888)  ;  s.c.  17  Pac.  Rep.  624  ; 
Leonard  i\  Territory,  2  Wash.  Tr.  381 
(1885) ;  s.c.  7  Pac.  Rep.  872. 

In  a  trial  for  murder,  it  appeared 
that  defendant  and  others  with  de- 
ceased were  seen  quarrelling  in  the 
street;  that  soon  afterwards  deceased 
fell  with  a  gash  in  his  neck,  from 
which  he  died  ;  that  the  next  morning 
blood  was  found  on  defendant's  hands 
and  clotlies.  Held,  that  the  evidence 
was  sufficient  to  go  to  the  jury.  State 
V.  Johnson,  37  Minn.  493  (1887). 

In  Watt  r.  People,  126  111.  9  (1888)  ; 
s.c.  18  N.  E.  Rep.  340,  the  deceased, 
an  express  messenger  on  a  railroad 
car  (No.  18),  was  murdered  somewhere 
between  Joliet  and  Morris.  Defend- 
ant W.  was.acting  as  baggage-man  on 
car  No.  34,  and  defendant  S.  as  rear 
brakeman.  The  two  cars  were  next 
to  the  engine.    Before  the  train  started 


defendants  were  seen  together  in  the 
baggage  car  in  conversation.  The 
doors  of  the  cars  could  be  opened 
from  the  inside  by  turning  a  knob, 
but  from  the  outside  only  by  a  key. 
W.  stated  that  while  making  out  his 
report  he  heard  a  step  behind  him, 
and  saw  a  man  pointing  a  revolver  at 
his  head,  who  commanded  him  not  to 
move ;  that  he  then  heard  the  break- 
ing of  glass  in  the  transom  in  the  roof 
of  the  car,  and  saw  a  man's  hand, 
holding  a  revolver,  pointing  down 
through;  that  he  sat  still  until  the 
train  reached  Morris,  when  he  dis- 
covered tiiat  both  the  robbers  had 
disappeared,  whereupon  he  gave  the 
alarm;  that  he  did  not  hear  the  man 
go  in  or  out.  The  safe  in  the  express 
car  was  found  to  be  opened  by  means 
of  a  key  taken  from  the  deceased,  and 
robbedof  §21,000.  In  the  closet  of 
the  passenger  car,  where  S.  was  prin- 
cipally employed,  was  found  a  piece 
of  one  of  the  cancelled  vouchers  which 
were  in  the  safe  at  the  time.  The 
defendants  had  no  means  except  their 
wages,  but  soon  after  the  robbery  they 
changed  their  st\'le  of  living,  and  in- 
dulged in  many  extravagances  out  of 
keeping  with  their  visible  means.  To 
explain  this  they  claimed  to  have  re- 
ceived large  sums  of  money  from 
their  relatives.  S.  was  shown  to  have 
paid  out  a  considerable  number  of 
$50  and  .$100  bills,  which  were  proved 
to  be  the  identical  bills  stolen  from 
the  express  compan}'.  It  was  proved 
that  W.  had  cautioned  S.  to  be  careful 
how  he  spent  his  money,  as  people 
were  beginning  to  suspect  them.  The 
evidence,  though  entirely  circumstan- 
tial, was  held  sufficient  to  support  a 
verdict  finding  both  defendants  guilty 
of  the  murder. 

But  a  mere  threat  to  kill  another 
is  insufficient  of  itself  to  warrant  a 
conviction  of  murder,  although  the 
killing  followed  soon  after  the  threat, 


5G6 


HOMICIDE. 


[chap,  XXIV. 


with  the  back  of  his  head  shot  almost  away,  and  under  cir- 
cumstances wholly  precluding  the  theory  of  suicide.  His  dog 
Avas  also  found  near  by  shot  dead.  A  verdict  of  guilty  of 
murder  against  the  elder  boy  was  justified  by  the  evidence.^ 
In  People  v.  Beckwith  ^  there  was  evidence  that  the  deceased 
was  approaching  the  defendant's  cabin  the  last  time  he  was 
seen  alive  ;  that  the  defendant  was  soon  afterwards  found 
burning  meat,  which  he  said  was  pork  rinds ;  that  the  defend- 
ant fled  from  his  cabin ;  that  a  body  cut  into  pieces  and  par- 
tially burned,  an  axe  covered  with  hair  the  color  of  that  of  the 
deceased,  and  clothes  like  his  were  found  in  the  cabin ;  that 
the  defendant  made  voluntary  expressions  indicating  that 
the  deceased  met  his  death  in  the  cabin,  is  sufficient  to 
support  a  verdict  of  guilty.  In  the  case  of  Sutton  v.  Com- 
monwealth 3  the  defendant  and  an  associate  were  recognized 
though  disguised,  lurking  near,  and  going  towards  the  home 
of  the  deceased,  avoiding  the  road,  and  inquired  for  the 
deceased;  the  defendant  being  armed  with  a  rifle.  They 
were  again  recognized  by  the  deceased's  wife  and  mother 
hiding  in  the  bushes  near  the  house,  and  were  further  identi- 
fied by  peculiar  tracks  and  a  heel-plate  on  the  defendant's 


and  no  otlier  perpetrator  of  the  crime 
is  disclosed.  Jones  i'.  State,  57  Miss. 
684  (1880).  And  evidence  tiiat  de- 
fendant had  a  motive  for  killing 
deceased;  that  a  month  before  the 
killing  he  had  threatened  deceased's 
father;  that  previous  to  the  killing  he 
liad  in  his  possession  a  gun,  and  sub- 
sequent to  the  killing  a  pistol,  vvhicli, 
from  the  character  of  the  wounds,  and 
tlie  balls  and  sliot  picked  up  on  the 
scene  might  liave  been  used  in  the 
killing,  will  not  support  a  verdict  of 
murder.  Hogan  v.  State,  13  Tox.  App. 
319  (1883). 

In  Olivaries  v.  State,  23  Tex.  App. 
305  (1887)  ;  s.c.  4  S.  W.  Rep.  903,  the 
evidence  showed  that  at  the  time  of 
her  death  deceased  was  licavy  witii 
cliild ;  that  her  body  showed  marks 
of  a  severe  beating  ;  tliat  her  husband, 
the  defendant,  was  jealous  of  lier,  re- 
fusecl  to  emi)loy  a  physician  for  her, 
swore  at  her  on  her  death-bed,  aii<l 
expressed  suspicions  of   her  fidelity. 


No  testimony  was  produced  to  prove 
overt  acts  of  cruelty  or  threats,  or 
that  the  deatli  was  produced  by  otlier 
than  natural  causes.  Tlie  evidence 
was  licld  insufficient  to  sustain  a  con- 
viction of  murder  in  the  second  de- 
gree. 

The  defendant  was  indicted  for 
poisoning  Y.  Tiiere  was  no  ]>ost  mor- 
tem examination,  and  no  analysis  of 
tlie  contents  of  the  stomach,  or  of  tlie 
vessel  which  contained  the  liquor  ad- 
ministered, and  whicli  was  said  to  con- 
tain poison.  There  was  no  proof  that 
tlie  accused  administered  tlie  liquor, 
or  that  he  knew  tliat  it  contained 
poison,  nor  was  any  motive  or  provo- 
cation shown.  The  court  Iicld  that  a 
verdict  of  guilty  would  be  set  aside, 
and  a  new  trial  granted.  Hatchett  r. 
Commonwealth,  70  Va.  1020  (1882). 

1  Davis  r.  State,  74  Ga.  869  (1885). 

2  108  N.  Y.  67  (1888)  ;  s.c.  15  N. 
E.  Rep.  53. 

8  7  S.  E.  Rep.  (Va.)  323. 


SEC.  516.]  GULLT    UPON    WHOLE   EVIDENCE.  567 

boot.  A  few  moments  after  being  so  seen  the  deceased  was 
shot  by  two  rifles  from  the  bushes.  The  defendant  fled  to 
Illinois,  and  was  there  captured,  and  his  associate's  where- 
abouts was  unknown  at  the  time  of  the  trial.  There  was 
evidence  to  impeach  and  contradict  tlie  state's  witnesses  and 
to  show  the  defendant's  good  character,  but  the  court  held 
that  the  evidence  justitied  a  conviction  of  murder  in  the  first 
degree. 

In  Miller  v.  Territorv,^  on  a  trial  for  murder,  the  evidence, 
chiefly  circumstantial,  showed  that  the  two  victims,  being  on 
their  way  to  Seattle  in  a  boat  in  the  early  morning,  were  shot, 
and  their  bodies  sunk  in  the  lake ;  that  one  of  the  bodies  was 
robbed ;  that  the  gunshots  were  heard  from  that  direction 
about  seven  o'clock  in  the  morning ;  that  their  boat  was  found 
beached  at  a  point  three  miles  distant.  It  appeared  that  the 
defendant  left  his  home  at  eight  o'clock  that  morning,  and 
arrived  at  Seattle  shortly  after  ten  o'clock  in  the  forenoon ; 
that  it  was  hardly  possible  for  him  to  have  committed  the 
the  crime  and  have  arrived  in  Seattle  before  one  o'clock  in 
the  afternoon  ;  that  he  had  a  black  boat,  and  that  some  person 
was  seen  from  a  distance  in  a  black  or  dark  boat  on  that 
morning  going  from  where  the  bodies  were  found  towards 
the  defendant's  house.  It  also  appeared  that  the  defendant 
owned  a  Winchester  rifle,  with  which  the  shooting  might 
have  been  done.  None  of  the  stolen  property  was  traced  to 
the  defendant's  possession.  The  only  evidence  as  to  motives 
was  that  one  of  the  victims  and  the  defendant  had  been  sub- 
poenaed to  testify  before  the  grand  jury  in  Seattle  that  morn- 
ing, presumably  concerning  a  charge  against  the  defendant's 
son,  about  which  the  defendant  showed  great  anxiety.  No 
threats  were  shown.  The  defendant,  an  ignorant,  illiterate 
man,  when  arrested,  displayed  some  agitation.  He  was  more 
agitated  when  taken  by  the  sheriff,  wlio  maintained  towards 
him  a  hostile  and  threatening  attitude,  to  the  scene  of  the 
murder.  When  taken  into  the  presence  of  the  dead  bodies 
at  the  undertaker's,  and  asked  b}^  the  sheriff,  "  How  do  you 
feel  in  the  presence  of  the  evidence  of  your  hellish  crime  ?  " 
he  looked  away  and  breathed  hard.  The  court  held  that  the 
evidence  was  insufficient  to  support  a  verdict  of  guilty. 
J  3  Wash.  Tr.  554  (1888)  ;  s.c.  19  Pac.  Rep.  50. 


568  HOMICIDE.  [chap.    XXIV. 

Sec.  517.    Same  —  Possession    of    stolen    pi'operty.  —  Iri 

those  cases  where  murder  is  accompanied  with  robbery,  pos- 
session of  the  fruits  of  the  crime  is  of  great  weight  in  estab- 
lishing proof  of  murder.^  Thus  in  the  case  of  Poe  v.  State,^ 
on  a  trial  for  murder  committed  by  persons  engaged  at  the 
time  in  rol)bing  a  store,  there  was  evidence  that  one  of  the 
two  defendants  was  seen  on  the  night  of  the  murder  going  in 
the  direction  of  the  store,  dressed  differently  from  what  he 
usually  dressed,  and  that  he  said  he  was  going  to  see  some 
loose  women,  who  disappeared  after  the  murder ;  that  both  of 
them  were  seen  the  next  morning  with  a  gun  and  saddle-bags 
near  the  house  of  the  mother  of  one  of  them,  and  told  the 
witness  not  to  tell  that  he  had  seen  them ;  that  they  disap- 
peared after  the  murder,  and  were  found  with  some  of  the 
stolen  articles  in  their  possessicui.  One  of  them  did  not 
attempt  to  prove  his  whereabouts  on  the  night  of  the  murder, 
and  the  other's  evidence  on  that  point  was  very  unsatisfac- 
tory. The  court  held  that  upon  this  and  other  circumstantial 
evidence,  the  jury  were  justified  in  returning  a  verdict  of  guilty. 

Sec.  518.  Same  —  Establishing  facts  by  competent  evi- 
dence. —  It  has  been  well  said  that  each  fact  in  the  chain  of 
facts  from  which  the  main  fact  in  issue  is  to  be  inferred  must 
be  proved  by  competent  evidence  and  by  the  same  weight  of 
evidence  as  if  each  one  were  the  main  fact  in  issue ;  ^  that  the 
evidence  is  wholly  circumstantial  does  not  necessitate  proof  of 
a  motive  in  the  defendant  for  the  commission  of  the  homicide  ;  * 
and  that  it  requires  that  every  single  or  separate  fact  or  cir- 
cumstance shown  shall  be  entirely  consistent  with  every 
other,  if  all  the  evidence  taken  together  proves  the  defend- 
ant's guilt  beyond  a  reasonable  doubt.^ 

1  Williams    v.    Commonvvealtli,   29  to  B's  death  A  had  no  means;    that 

I'a.  St.  102   (1857)  ;  Poe  v.  State,  10  A  told  false  and  contradictor}'  stories 

Lea  (Tenn.)  (57;}  (1882).  to  those  who  inquired  about  B.     Held, 

A   and  B,  brotliers.  went    liuiitin<(  tliat  a  verdict  of  murder  in  the  first 

together.       B  was    found    dead,  shot  dejjree  would  not  be  set  aside.     State 

in    the   back   of    the    head.       It    was  v.  Anderson,  10  Oreg.  448  (1882). 
proved  that  A  immediately  rifled  H's  -  10  Lea  (Tenn.)  (17:)  (1882). 

pockets,  in  which  was  a  considerable  ^  See  Harrison  r.  State,  G  Te.v.  App. 

sum  of    money,  as  A  knew;    that  A  42  (187!)). 

hastily    possessed  himself  of   all  B's  *  Green  r.  State,  38  Ark.  o04  (1881). 

portable  effects,  which  were  consider-  ^  Timmerman  r.  Territory,  3  Wash. 

able,  and  fled  the  country;  that  prior  Tr.  445  (1888)  ;  s.c.  17  Pac.  Rep.  ()24. 


SEC.  519.]  GUILT    UPON    WHOLE   EVIDP:NCE. 


5G9 


Sec.  519.  Doctrine  of  reasonable  doubt. —  Before  the 
defendant  can  be  convicted  for  the  commission  of  a  homicide, 
the  Jur}^  must  be  satisfied  of  his  guilt  of  the  crime  of  which 
they  propose  to   convict  liini,   beyond  a  reasonable  doubt.^ 


1  See  Lang  v.  Slate,  84  Ala.  1  (1887)  ; 
s.c.  5  Am.  St.  Hop.  o24 ;  4  So.  Rep. 
1!)3;  Gunter  v.  State,  8:]  Ala.  96 
(1887)  ;  s.c.  10  Cr.  L.  Mag.  428  ;  -3  So. 
Kep.  600;  West  v.  State,  76  Ala.  98 
(1884);  Ford  v.  State,  71  Ala.  385 
(1882)  ;  s.c.  5  Cr.  L.  Mag.  32  ;  Cross 
r.  State,  68  Ala.  476  (1880;  Boswell 
V.  State,  63  Ala.  307  (1879)  ;  s.c.  35 
Am.  Rep.  20;  Law.  Iiisan.  352  ;  Mose 
V.  State,  .36  Ala.  211  (1860);  State  v. 
Stephen,  15  Ala.  534  (1849);  Huds- 
peth V.  State,  50  Ark.  534  (1888); 
s.c.  9  S.W.  Rep.  1 ;  Overman  v.  State, 
49  Ark.  364  (1887) ;  s.c.  5  S.  W.  Rep. 
588;  Green  v.  State,  -38  Ark.  304 
(1881)  ;  People  v.  Goslaw,  73  Cal.323 
(1887)  ;  s.c.  14  Pac.  Rej).  788;  People 
V.  Woody,  45  Cal.  289  (1873)  ;  People 
V.  Ah  Fung,  16  Cal.  137  (1860)  ;  Ter- 
ritory V.  Bannigan,  1  Dak.  432  (1877)  ; 
Bond  V.  State,  21  Fla.  738  (1886)  ; 
Weeks  v.  State,  79  Ga.  36  (1887)  ;  s.c. 
3  S.  E.  Rep.  323 ;  Rickerson  v.  State, 
78  Ga.  15  (1886)  ;  s.c.  1  S.  E.  Rep. 
178  ;  Davis  v.  State,  74  Ga.  869  (1885)  ; 
Marshall  t-.  State,  74  Ga.  26  (1884)  ; 
Moon  V.  State,  68  Ga.  687  (1882)  ;  Long 
;;.  State,  38  Ga.  491  (1868)  ;  Mitchum 
V.  State,  11  Ga.  615  (1852)  ;  Watt  v. 
People,  126  111.  9  (1888)  ;  s.c.  18  N.  E. 
Rep.  340  ;  Grady  v.  People,  125  111. 
122  (1888)  ;  s.c.  16  N.  E.  Rep.  654  ; 
Spies  V.  People  (Anarchists'  Case),  122 
111.  1  (1887)  ;  s.c.  3  Am.  St.  Rep,  320; 
6  Am.  Cr.  Rep.  570;  9  Cr.  L.  Mag. 
829  ;  12  N.  E.  Rep.  865  ;  17  N.  E.  Rep. 
898;  Ritzman  v.  People,  110  111.  .362 
(1884);  s.c.  4  Am.  Cr.  Rep.  403; 
Swigar  v.  People,  109  111.  272  (1884)  ; 
Otmer  v.  People,  76  111.  149  (1875)  ; 
Guetig  V.  Slate,  66  Ind.  94  (1879)  ;  s.c. 
32  Am.  Rep.  99;  Schusler  v.  State, 
29  Ind.  394  (1868)  ;  Polk  v.  State,  19 
Ind.  170  (1862)  ;  French  v.  State,  12 
Ind.  670  (1859);  State  v.  Trout,  74 
Iowa,  545  (1888)  ;  s.c.  38  N.  W.  Rep. 
405;    State    v.   Smith,    73    Iowa,   32 


(1887)  ;  s.c.  34  N.  W.  Rep.  597;  State 
V.  Clouser,  69  Iowa,  313  (1886)  ;  State 
V.  George,  62  Iowa,  682  (1883)  ;  State 
V.  Porter,  34  Iowa,  131  (1871);  s.c. 
1  Gr.  Cr.  Rep.  241 ;  State  v.  Ostrander, 
18  Iowa,  435  (1865)  ;  Tweedy  r.  State, 
5  Iowa,  433  (1857) ;  Craft  v.  State, 
3  Kan.  450  (186(i)  ;  Home  v.  State,  1 
Kan.  42  (18(52)  ;  Commonwealth  v. 
Cozine  (Ky.),  9  S.  W.  Rep.  289; 
Roberts  v.  Connnonwealth  (Ky.),  8 
S.  W.  Rep.  270;  Ruberts  v.  Common- 
wealth (Ky.),  7  S.  W.  Rep.  401; 
Payne  v.  Commonwealth,  1  Met.  (Ky.) 
370  (1858);  Commonwealtii  v.  Robin- 
son, 146  Mass.  571  (1888) ;  s.c.  10  Cr. 
L.  Mag.  544;  16  N.  E.  Rep.  452; 
Conimonirealth  v.  Webster,  59  Mass. 
(5  Cush.)  295  (1850);  s.c.  .52  Am. 
Dec.  711  ;  State  v.  Johnson,  37  Minn. 
493  (1887);  s.c.  35  N.  W.  Rep.  373; 
McKenna  v.  State,61  Miss.  589  (1884) ; 
Hawthorne  v.  State,  58  Miss.  778 
(1881)  ;  Jones  v.  State,  -57  Miss.  684 
(1880)  ;  Kendrick  r.  State,  55  Miss. 
436  (1877)  ;  Pitts  v.  State,  43  Miss. 
472  (1870)  ;  George  v.  State,  39  Miss. 
570(1860)  ;  Riggsr.  State,  30  Miss. 635 
(1856);  State 'i-.  Walker,  98  Mo.  95 
(1888) ;  s.c.  9  S.  W.  Rep.  647 ;  State 
V.  Anderson,  86  Mo.  309  (1885)  ;  State 
r.  Simms,  68  Mo.  305  (1878);  State  v. 
Schoenwald,  31  Mo.  147  (1860)  ;  State 
r.  Nueslein,  25  Mo.  Ill  (1857);  Ter- 
ritory r.  Clayton,  8  Mont.  Tr.l  (1888)  ; 
s.c.  19  Pac.  Rep.  293 ;  Territory  v. 
Adolfson,  5  Mont.  Tr.  237  (1884); 
s.c.  5  Pac.  Rep.  254  ;  Territory  v.  Tun- 
nell,  4  Mont.  Tr.  148  (1881)  ;  s.c.  1 
Pac.  Rep.  742 ;  Territory  v.  Edmon- 
son, 4  Mont.  Tr.  141  (1881)  ;  s.c.  1 
Pac.  Rep.  738;  Caseij  v.  State,  20 
Neb.  138  (1886) ;  s.c.  'S  Cr.  L.  Mag. 
597;  29  N.  W.  Rep.  264  ;  Brad- 
shaw  r.  State,  17  Neb.  147  (1885)  ; 
s.c.  22  N.  W.  Rep.  .361  ;  5  Am.  Cr. 
Rep.  499  ;  State  v.  McCluer,  5  Nev. 
132    (1869);    People    v.    Reich,    110 


670 


HOMICIDE. 


[chap.  XXIV. 


The  term  "  reasonable  doubt"  does  not  mean  every  vague 
or  conjectural  doubt,  but  it  is  a  substantial  doubt  —  a  reason- 
able hypothesis  —  arising  from  the  evidence,  or  a  lack  of 
evidence,  inconsistent  witli  the  theory  of  defendant's  guilt.^ 


N.  Y.  600  (1888)  ;  s.c.  18  N.  E.  Rep. 
104;  People  v.  Lyons,  110  N.  Y.  018 
(1888);  s.c.  10  Cr.  L.  Mag,  690;  17 
N.  E.  Rep.  891  ;  People  v.  Cignarale, 
110  N.  Y.  23  (1888)  ;  s.c.  17  N.  E.  Rep. 
135;  People  v.  VVillson,  109  N.  Y. 
345  (1888);  s.c.  16  N.  E.  Rep.  540; 
People  V.  Beckwitb,  108  N.  Y.  67 
(1888);  15  N.  E.  Rep.  5:!;  Brvlberton 
V.  People,!^  N.Y.  159  (1878) ;  s.c.  Am. 
Cr.  Rep.  218;  Gonlon  v.  People,  33 
N.  Y.  501  (1865);  Yates  v.  People, 
,32  N.  Y.  509  (1805)  ;  Stepliens  v. 
People,  4  Park.  Cr.  Cas.  (N.  Y.)  396 
(1859)  ;  State  v.  Brewer,  98  N.  C.  007 
(1887);  s.c.  3  S.  E.  Rep.  819;  State 
y.  Jones,  97  N.  C.  469  (1887);  s.c.  1 
S.  E.  Rep.  680;  State  v.  Harrison,  5 
Jones  (N.  C.)  L.  115  (1857)  ;  State  v. 
Anderson,  10  Oreg.  448  (1882)  ;  Tif- 
fany )'.  Commonwealtli,  121  Pa.  St. 
105  (1888);  s.c.  15  Ati.  Rep.  462; 
McMeen  ;'.  Commonwealth,  114  Pa. 
St.  300  (1886)  ;  s.c.  9  Atl.  Rep.  878; 
McLain  v.  Commonwealth,  99  Pa.  St. 
86  (1881)  ;  Meyers  v.  Commonwealth, 
83  Pa.  St.  131  (1870)  ;  Ortwein  v. 
Commonwealth,  76  Pa.  St.  414  (1875)  ; 
s.c.  18  Am.  Rep.  420;  1  Am.  Cr.  Rep. 
297  ;  Law.  Insan.  438  ;  Commonwealth 
V.  Drum,  58  Pa.  St.  9  (1868);  Warren 
V.  Commonwealth,  37  Pa.  St.  45  (1860); 
s.c.  Law.  Insan.  809;  Kilpatrifk  c. 
Commonwealth,  31  Pa.  St.  198  (1858); 
Williams  v.  Commonwealth,  29  Pa. 
St.  102  (1857);  Commonwealth  v. 
Harman,  4  Pa.  St.  209  (1840)  ;  Henry 
V.  State,  11  Humph.  (Tenn.)  224 
(1850)  ;  Poe  r.  State,  10  Lea  (Tenn.) 
673  (1882);  Alexander  v.  State,  25 
Te.x.  App.  260  (1888)  ;  s.c.  7  S.  W. 
Rep.  867  ;  Ballen  v.  SUite,  2(5  Tex. 
App.  706  (1887)  ';  s.c.  8  Am.  St.  Rep. 
438;  9  S.  W.  Rep.  270;  Rather  v. 
State,  25  Tex.  App.  623  (188H)  ;  s.c. 
9  S.  W.  Rep.  69  ;  Massengale  r.  State, 
24  Tex.  App.  181  (1888)  ;  s.c.  6  S.  W. 
Rep.   35 ;    Heard    v.    State,   24   Tex. 


App.  103  (1888)  ;  s.c.  5  S.  W.  Rep. 
846  ;  Scott  V.  State,  23  Tex.  App.  452 
(1887);  s.c.  5  S.  W.  Rep.  189;  Gib- 
son V.  State,  23  Tex.  App.  414  (1887); 
s.c.  5  S.  W.  Rep.  314;  Olivares  v. 
State,  23  Tex.  App.  305  (1887)  ;  s.c. 
4  S.  W.  Rep.  903;  Rowlett  v.  State, 
23  Tex.  .A.pp.  191  (1887)  ;  s.c.  4  S.  W. 
Rep.  582;  Kunde  v.  State,  22  Tex. 
App.  65  (1887);  s.c.  3  S.  W.  Rep. 
325;  Smith  v.  State,  19  Tex.  App. 
95  (1886)  ;  Lane  v.  State,  19  Tex.  54 
(1886);  Jolmsonv.  State,  18Tex.  App. 
576  (1886);  Williams  r.  State,  15  Tex. 
App.  401  (1884)  ;  Gomez  v.  State, 
15  Tex.  App.  327  (1884)  ;  Hogan 
V.  State,  13  Tex.  App.  319  (1883)  ; 
Scott  V.  State,  12  Tex.  App.  594  (1883)  ; 
Pogne  V.  State,  12  Tex.  App.  283 
(1883)  ;  Holmes  v.  State,  11  Tex.  App. 
223  (1882)  ;  Kemp  v.  State,  11  Tex. 
App.  174  (1882);  King  v.  State,  9 
Tex.  App.  515  (1881)  ;  Webb  v.  State, 
9  Tex.  App.  490  (1881);  s.c.  Law. 
Insan.  835;  Jackson  v.  State,  9  Tex. 
App.  114  (1881);  Harrison  v.  State, 
6  Tex.  App.  42  (1879);  Browne  v. 
State,  4  Tex.  App.  275  (1879)  ;  Sutton 
;•.  Commonwealth  (Va.),  7  S.  E.  Rep. 
323;  Russell  r.  Commonwealth,  78 
Va.  400  (1884)  ;  Ilatchett  v.  Common- 
wealth, 76  Va.  1026  (1882)  ;  Dean  v. 
Commonwealth,  .32  Gratt.  (Va.)  912 
(1879);  Miller  ;;.  Territory,  3  Wash. 
Tr.  554  (1888)  ;  s.c.  19  Pac.  Rep.  50;  \ 
Timmerman  v.  Territory,  3  Wash.  Tr. 
445  (1888);  s.c.  17  Pac.  Rep.  624; 
Leonard  v.  Territory,  2  Wasli.  Tr. 
381  (1885);  s.c.  7  Pac.  Rep. 872;  Terri- 
tory V.  Manton,  8  Mont.Tr.  95  (1888)  ; 
s.c.  14  Pac.  Rep.  637. 

1  See  Lang  v.  State,  84  Ala.  1 
(1887);  s.c.  5  Am.  St.  Rep.  324  ;  4 
So.  Rep.  193;  State  v.  Stephen,  15 
Ala.  534  (1849)  ;  Territory  v.  Banni- 
gan,  1  Dak.  432  (1877)  ;  Long  v. 
State,  38  Ga.  491  (1868)  ;  Spiex  v. 
People  (Anarchists'  Case),  122  111.  1 


SEC.  520.]  GUILT   UPON    WHOLE   EVIDENCE.  571 

It  should  be  accurately  defined  to  the  jury  in  each  case  in 
language  not  to  be  misunderstood,  which  conveys  that  idea ; 
and  a  charge  that  the  jury  "  should  be  convinced  as  jurors 
when  they  would  be  convinced  as  men,  and  should  doubt  as 
jurors  when  they  would  doubt  as  men,"  has  been  held  to  be 
a  correct  exposition  of  the  doctrine  of  reasonable  doubt  as 
applied  to  a  criminal  prosecution.^ 

Sec.  520.  Same  —  Proof  of  material  facts  charged  — 
Instructions.  —  Instructions  in  a  murder  trial  that  the  jury 
need  not  be  satisfied  beyond  a  reasonable  doubt  "of  each 
link  in  the  chain  of  circumstances  relied  on  to  establish 
the  defendant's  guilt,"  but  that  it  is  sufficient  if,  taking  the 
testimony  altogether,  the  jury  are  satisfied  beyond  a  reason- 
able doubt  that  the  state  had  proven  "each  material  fact 
charged,  that  defendant  is  guilty,"  is  correct.^ 

On  an  indictment  i^r  murder,  an  instruction  that  "  to 
prove  beyond  a  reasonable  doubt  that  the  defendant  is  guilty 
does  not  mean  that  the  state  must  make  the  proof  by  an  eye- 
witness, or  to  a  positive,  absolute,  mathematical  certainty. 
This  latter  measure  of  proof  is  not  required  in  any  case.  If, 
from  all  the  evidence,  the  jury  believe  that  it  is  possible,  or 
that  it  may  be,  or  perhaps,  the  defendant  is  not  guilty,  this 
degree  of  uncertainty  does  not  amount  to  a  reasonable  doubt, 
and  does  not  entitle  the  defendant  to  an  acquittal.  All  that ' 
is  required  is  that  the  jury  should,  from  all  the  evidence,  be- 
lieve beyond  a  reasonable  doubt  that  the  defendant  is  guilty; 

(1887);  s.c.  9  Cr.  L.Mag.  827;  P>  Am.  1-32  (1809)  ;    Brotlierton  v.  People,  75 

St.  Rep.  320  ;    0  Am.  Cr.   Kep.  .070 ;  N.  Y.  159  (1878)  ;  s.c.  3  Am.  Cr.  Rep. 

12  N.  E.  Rep.  805  ;  17  N.  E.  Rep.  898  ;  218  ;  McMeen  v.  Commonwealth,  114 

Schusler  v.  State,  29  Ind.  394  (1808)  ;  Pa.  St.  300    (1886)  ;    Commonwealth 

Home   V.  State,    1    Kan.   42    (1802);  «;.  Drum,  58  Pa.  St.  9  (1808)  ;  Warren 

Commonwealth    v.     Webster,    59    Mass.  v.     Commonwealth,    37    Pa.    St.    45 

(5  Cash.)  295    (1850);    s.c.  52    Am.  (1800);    .s.c.   Law.    Insan.   809;    Kil- 

Dec.  711  ;  Kemlrick  v.  State,  55  Miss,  patrick  v.  Commonwealth,  31   Pa.  St. 

430  (1877)  ;  State  v.  Walker,  98  Mo.  198  (1858)  ;    Conmionwealtli  c.  Har- 

95    (1888)  ;    s.c.  9  S.  W.  Rep.   047  ;  man,  4  Pa.  St.  209  (181(i). 
State  I'.  Anderson,  86  Mo.  309  (1885)  ;  i  See  Spies  v.  People   (Anarchists' 

State    V.    Schoenwald,    31    Mo.     147  Case),  122  111.   1    (1887)  ;    s.c.  9   Cr. 

(1800)  ;  State  i-.  Neuslein,  25  Mo.  Ill  L.  Mag.  829;  3  Am.  St.  Rep.  320;  6 

(1857)  ;  Territory  v.  Manton,  8  Mont.  Am.  Cr.  Rep.  570 ;  12  N.  E.  Rep.  805; 

95    (1888)  ;    s.c.    14    Pac.    Rep.    037 ;  17  N.  E.  Rep.  898. 
Bradshaw  v.  State,  17  Neb.  147  (1885)  ;  2  Bradshaw   v.  State,  17  Neb.   147 

s.c.  5  Am.  Cr.  Rep.  499  ;  22  N.   W.  (1885)  ;  s.c.  5  Am.  Cr.  Rep.  499. 
Rep.  301 ;    State  v.  McCluer,  5  Nev. 


672  HOMICIDE.  [chap.  XXIV. 

and  if  they  so  believe,  .  .  .  they  must  find  the  defendant 
puilty,  although  they  may  also  believe,  from  the  evidence, 
that  it  may  be  that  he  is  not  guilty,  or  that  it  is  possible  that 
he  is  not  guilty,"  is  not  error.^ 

But  an  instruction  that  "  In  determining  the  question  of 
doubt  you  will  act  as  a  prudent,  careful  business  man  would 
act  in  determining  an  important  matter  pertaining  to  his  own 
affairs,"  has  been  held  to  be  erroneous.  There  must  be  in 
the  juror's  mind  an  abiding  conviction  to  a  moral  certainty 
of  the  truth  of  the  charge  against  the  accused;  such  convic- 
tion as  the  juror  would  venture  to  act  upon  in  matters  of  the 
highest  concern  to  himself.^ 

Sec.  521.  Same  —  "The  Anarchists'  Case."  —  In  the  An- 
archists' Case  ^  the  trial  court  gave  the  rule  as  to  a  reasonable 
doubt,  as  affecting  the  finding  of  the  jury,  as  follows  :  "  The 
court  instructs  the  jury,  as  matter  ftf  law,  that  in  considering 
the  case  the  jury  are  not  to  go  beyond  the  evidence  to  hunt 
up  doubts,  nor  must  they  entertain  such  doubts  as  are  merely 
chimerical  or  conjectural.  A  doubt,  to  justify  an  acquittal, 
must  be  reasonable,  and  it  arises  from  a  candid  and  impartial 
investigation  of  all  the  evidence  in  the  case ;  and  unless  it  is 
such  that,  were  the  same  kind  of  doubt  interposed  in  the 
graver  transactions  of  life,  it  would  cause  a  reasonable  and 
prudent  man  to  hesitate  and  pause,  it  is  insufficient  to  author- 
ize a  verdict  of  'not  guilty.'  If,  after  considering  all  the 
evidence,  you  can  say  you  have  an  abiding  conviction  of  the 
truth  of  the  charge,  you  are  satisfied  beyond  a  reasonable 
doubt."  The  rule,  as  thus  formulated,  has  repeatedly  received 
the  approval  of  the  courts,  and  is  correct. 

Sec.  522.  Same  —  Proving  alibi."* — While  the  prosecu- 
tion are  required  to  establish  beyond  a  reasonable  doubt  the 
guilt  of  the  defendant,  it  is  not  incumbent  on  the  defendant 
to  prove  an  alibi  beyond  a  reasonable  doubt ;  and  although  the 
evidence  offered  to  establish  an  alibi  falls  short  of  the  weight 
of  moral  certainty  as  to  the  existence  of  the  alibi^  yet,  if  it 

1  Lang  V.  State,  84  Ala.  1   (1887)  ;  "  122  111.  1  (1887)  ;    s.c.   9   Cr.  L.j 

s.c.  5   Am.  St.  Rep.  ?>2i  ;    4  So.  Rep.  Mag.  829  ;  8  Am.  St.  Rep.  -320  ;  0  Am. 

193.  Cr.  Rep.  570  ;  12  N.  E.  Rep.  805  ;    17J 

'  Territory  v.  Bannigan,  1  Uak.  432  N.  E.  Rep.  898. 
(1877).  *  See  ante,  §  512. 


SEC.  522.]  GUILT   UPON   WHOLE   EVIDENCE.  573 

leaves  in  the  minds  of  the  jury  such  a  doubt  or  uncertainty 
that,  taken  l^y  itself,  they  could  not  find  for  or  against  the 
allhi^  they  are  bound  to  carry  such  doubt  into  the  case  of  the 
prosecution,  and  to  array  it  there  as  an  element  of  the  reason- 
able doubt  beyond  which  the  prosecution  must  establish 
guilt.i 

An  aVihi  not  only  goes  to  the  essence  of  guilt,  but  it  trav- 
erses one  of  the  material  averments  of  the  indictment  tliat 
the  defendant  did  then  and  there  the  particular  act  charged,- 
and  the  defendant  is  entitled  as  much  to  the  benefit  of  the 
doubt  raised  thereby  as  to  any  other  doubt  raised  by  the  evi- 
dence ;  and  if  its  weight  alone,  or  added  to  that  of  any  other 
fact,  be  sufficient  to  reduce  belief  in  the  minds  of  the  jury  as 
to  the  defendant's  guilt  to  a  reasonable  doubt,  they  must 
acquit.^  In  State  v.  Fong  Ah  Sing,*  the  trial  court  was 
requested  to  instruct  the  jury  that  "  if  they  find  the  defend- 
ant to  have  been  at  another  place,  as,  for  instance,  in  the 
society's  rooms  which  have  been  spoken  of  in  the  evidence, 
at  the  time  of  the  alleged  shooting,  and  if  his  being  there 
then  creates  a  reasonable  doubt  of  his  having  been  present  at 
the  place  of  the  alleged  crime  at  the  time  of  its  alleged  com- 
mission, he  should  have  the  benefit  of  that  reasonable  doubt, 
and  be  acquitted."  This  instruction  was  refused  and  on 
appeal  was  held  to  be  proper. 

Wharton  says^  to  hold,  that  though  the  defendant  casts 
reasonable  doubt  on  the  averment  of  his  co-operation  in  the 
guilty  act,  he  must  be  convicted  unless  he  established  such 
non-co-operation  by  a  preponderance  of  proof,  is  to  fall  into 
the  error  of  confounding  the  burden  of  proof  with  the  pre- 
sumption of  innocence.  Undoubtedly,  if  the  prosecution 
makes  out  a  case  sutficient  to  secure  a  verdict  of  conviction, 
then  the  burden  is  on  the  defendant  to  prove  his  defence. 
But  Avhen  his  pi'oof  is  in,  then  the  final  qjestion  is.  Are  the 
essential  averments  of  the  indictment  proved  beyond  a  rea- 

1  People  V.  Fong  Ah  Sing,  64  Cal.  40  Iowa,  623  (1877)  ;  Walker  v.  State, 

253  (1883)  ;  State  v.  Howell  (Mo.),  14  42  Tex.  360  (1875). 
S.  W.  Rep.  4   (1890)  ;    s.c.    31    Cent.  2  pee  Wliart.  Cr.  Ev.  (8th  ed.)  333. 

L.  J.  384,  affirming  State  v.  Jennings,  ^  People  r.  Fong  Ah  Sing,  64  Cal. 

81  Mo.  185  (1883)  ;  State  v.  Lewis,  69  253  (1883). 
Mo.  92  (1878).     See  Howard  r.  State,  •*  64  Cal.  253  (1883). 

60  Ind.  190  (1875)  ;  State  v.  Hardin,  &  Whart.  Cr.  Ev.  (8th  ed.)  333. 


574  HOMICIDE.  [chap.  XXIV. 

sonable  doubt  ?     And  among  these  essential  averments  is  the 
defendant's  j)articipation  in  the  act  charged. 

It  is  said  in  People  v.  Stone,^  that  where  the  only  question 
in  a  murder  trial  is  whether  the  defendant  was  the  person 
who  committed  the  murder,  and  three  eyewitnesses,  who 
were  previously  acquainted  with  the  defendant,  positively 
identify  him  as  the  murderer,  and  it  is  also  proved  that 
sliortly  before  the  murder  the  defendant  had  had  an  alterca- 
tion with  the  deceased,  a  judgment  of  conviction  will  not  be 
reversed  on  appeal,  although  several  witnesses  swear  to  an 
aUbi,  and  although  the  witnesses  for  the  prosecution  were 
unintelligent  and  illiterate. 

1  117  N.  Y.  480  (1889). 


CHAPTER   XXV. 

INSTEUCTIO^'S   TO   THE  JURY. 

Sec.  523.  What  questions  must  be  submitted  by  the  instruction. 

Sec.  524.  Charging  erroneously  or  iusuffiL-iently. 

Sec.  525.  Instructions  as  to  tiie  degree  of  murder. 

Sec.  526.  Instructions  as  to  manshiugiiter. 

Sec.  527.  Instructions  as  to  excuse  or  justification. 

Sec.  528.  Instructions  as  to  competency  and  weight  of  evidence. 

Sec.  520.  Instructions  as  to  verdict. 

Sec.  530.  Instructions  as  to  punishment. 

Sec.  5.S1.  Repetition  of  instruction. 

Sec.  532.  Sufficiency  of  instructions  —  .\s  to  form. 

Sec.  533.  Same  —  Contradictory  and  misleading  instructions. 

Sec.  534.  Same  —  Using  figure  of  speech. 

Sec.  535.  Same — Instructions  as  to  form  of  verdict. 

Sec.  536.  Written  instructions. 

Sec.  537.  Instruction  as  to  evidence  of  accomplice. 

Sec.  538.  Instruction  as  to  reasonable  doubt  and  alibi. 

Sec.  523.  What  questions  must  be  submitted  by  the 
instructions.  —  On  the  trial  of  an  indictment  for  feloniou.s 
homicide  it  is  the  duty  of  the  court  to  state  to  the  jury  the 
hiw  defining  the  offence  with  which  the  defendant  is  charged, 
and,  if  the  proof  raises  any  doubt  as  to  the  degree  of  the 
homicide,  the  law  defining  the  different  grades  of  homicide, 
not  higher  than  the  grade  which  the  indictment  charges.^ 
No  instruction  should  be  given  upon  the  degree  of  homicide 
which  lacks  all  proof  of  its  commission  .^ 

Sec.  524.  Chargring  erroneously  or  insufficiently.  —  While 
it  is  true,  generally,  that  a  failure  of  the  trial  court  to  charge 

1  State    V.   Stephen,    15    Ala.    5.34  2  Washington  v.  State,  36  Ga.  222 

(1849) ;  Washington  v.  State,  36  Ga.  (1867)  ;  Crawford  v.  State,  12  Ga.  142 

222    (1867);    Crawford    v.    State,    12  (1852);  State  ?;.  Stoeckli,  71  Mo.  559 

Ga.  142  (18.52)  ;  Fitzgerold  v.  People,  (1880)  ;  State  v.  Kilgore,  70  Mo.  546 

37  N.  Y.  413  (1868)  ;  Nelson  r.  State,  (1879);    Lindsay    v.    State,    36    Tex. 

2  Swan  (Tenn.)  257  (18-52)  ;  Lindsay  337  (1871)  ;  Daniels  v.  State,  24  Tex. 

V.  State,  36  Tex.  337  (1871).  389  (1859). 

575 


576  HOMICIDE.  [chap.  XXV. 

fully,  when  there  is  no  essential  point  omitted,  or  wrongfully 
charged,  it  is  not  error,  unless  it  should  appear  that  the  court 
was  asked  for  further  instructions ;  still,  on  the  trial  of  a 
capital  offence,  it  is  error  if  the  court  —  although  expound- 
ing the  law  correctly,  so  far  as  the  charge  goes  —  omit  to 
instruct  the  jury  fully  and  explicitly  on  the  legal  effect  of  all 
the  circumstances  developed  on  the  trial  which  would  tend 
to  determine  the  character  or  degree  of  the  prisoner's  guilt.^ 

Sec.  525.    Instructions  as  to  the   degrree  of    murder. — 

Where,  in  a  trial  for  murder  in  the  lirst  degree,  it  is  clearly 
proven  that  the  defendant  killed  the  deceased  intentionally ; 
that  there  was  no  excuse  or  justification  for  the  killing;  that 
the  provocation  given  by  the  deceased  was  slight,  it  is  not  a 
case  requiring  instructions  to  be  given  to  the  jury  defining 
murder  in  the  second  or  a  lower  degree.^  Where  the  indict- 
ment charges  murder  in  the  first  degree,  but  the  evidence 
leaves  a  doubt  as  to  the  degree,  the  court  should  instruct 
upon  the  law  of  both  degrees  of  murder ;  however,  Avhere  the 
evidence  shows  clearly  and  unequivocally  that  the  homicide 
was  not  less  than  murder  in  the  first  degree,  there  is  no  occa- 
sion to  instruct  the  jury  upon  the  law  of  any  lesser  grade  of 
homicide.^  But  where  there  is  any  evidence  whatever  which, 
if  believed,  will  reduce  the  crime  to  murder  in  the  second 
degree,  even  though  it  be  given  by  the  defendant  himself,  he 
is  entitled  to  an  instruction  upon  the  law  of  murder  in  the 
second  degree.* 

In  the  case  of  People  v.  Kelly  ^  the  defendant  was  indicted 
and  tried  for  murder  in  the  first  degree  in  killing  one  Lutz, 
from  a  deliberate  and  premeditated  design  to  effect  his  death, 
and  also  for  killing  him  while  he,  the  defendant,  was  engaged 

1  Nelson  v.  State,  2  Swan  (Tcnn.)  Iiisan.  10;   State  v.  Talbott,  73  Mo. 

257  (1852).  347  (1881);  State  v.  Wieners,  66  Mo. 

^  State    I'.    Wieners,    66    Mo.    13  13  (1877) ;  State  v.  riililips,  24  Mo. 

(1877).  475   (1857)  ;   O'Connell   i'.   State,   18 

3  See  State  v.  Johnson,  8  Iowa,  525  Tex.   343    (1857)  ;    May  v.   State,   22 

(1800)  ;  s.c.  74  Am.  Dec.  321  ;  State  Tex.  App.  505  (1887)  ;  s.c.  3  S.  W. 

r.  Wilson,  88  Mo.  13  (1885);  State  !•.  Kep.    781;    Washintrton    v.    State,    1 

Ward,  74    Mo.  253  (1881)  ;    State   >:  Tex.    App.    647    (1877)  ;    Ilolden    v. 

Kotovsky,  74  Mo.  247   (1881)  ;  State  State,  1  Tex.  App.  225  (1877). 

r.  Ellis,  74  Mo.  207   (1881);  State  r.  ■»  State  y.  Banks,  73  Mo.  592  (1881). 

Erb,  74  Mo.   100   (1881);    s.c.  Law.  ^  35  Hun,  295  (1885). 


SEC.  525.]  INSTRUCTIONS   TO   THE   JURY.  577 

in  the  commission  of  a  felony.  Upon  the  trial,  evidence  was 
given  tending  to  show  that  on  the  evening  of  October  tAven- 
tieth  Lutz  received  ten  dollars,  being  the  wages  of  a  week  for 
himself  and  his  son,  and  the  defendant  received  at  the  same 
time  from  the  same  person  two  dollars  for  his  wages ;  that 
at  about  one  o'clock  of  the  morning  of  the  next  day  the  de- 
fendant rapped  at  the  door  of  the  house  where  Lutz  and  his 
son  lived,  was  admitted  by  Lutz,  and  went  to  bed  with  Lutz 
and  his  son  ;  that  during  the  night  the  defendant  assaulted 
Lutz  and  his  son,  beating  them  over  the  head  witli  a  blunt 
instrument  and  inflicting  injuries  upon  Lutz  from  which  he 
died  ;  that  he  took  the  wages  received  by  Lutz  from  the  pocket 
of  his  Avaistcoat,  which  hung  by  the  side  of  the  bed,  and  appro- 
priated them  to  his  own  use.  The  trial  court  in  its  charge  de- 
fined the  crime  of  murder  in  the  first  degree,  but  made  no  men- 
tion of  murder  in  the  second' degree,  or  of  manslaughter,  the 
judge  stating  that  he  thought  it  would  confuse  the  jury  to 
state  all  the  different  grades  of  murder  or  homicide,  and  then 
added:  "  There  is  not  any  opportunity,  gentlemen,  for  you  or 
me  to  compromise  this  case  in  any  respect.  It  is  a  conviction 
of  murder  in  the  first  degree  or  an  absolute  acquittal."  Upon 
the  defendant's  exception  to  this  charge  the  court  said,  "Wbat 
I  intended  to  say  to  you  was  that  a  verdict  in  this  case  other 
than  that  of  guilty  or  not  guilty  would  not,  in  my  judgment, 
be  borne  out  by  the  facts  of  the  case.  I  say,  however,  to  you, 
that  as  a  matter  of  right  and  power  you  can  bring  in  a  vei^ict 
of  a  lesser  offence  under  an  indictment  charging  murdei'  in 
the  first  degree,  and  to  that  extent  I  modify  my  charge."  He 
also  charged  that  if  they  believed  the  testimony  of  the  son, 
who  related  what  occurred  in  the  house,  that  "  that  alone  is 
sufficient  to  enable  you  to  find  a  verdict  of  guilty  in  this 
case."  On  appeal  the  court  held  that,  as  the  taking  of  the 
money  under  the  circumstances  described  did  not  amount  to 
a  felony  but  only  to  a  larceny,  and  as  the  question  of  pre- 
meditation and  deliberation  was,  under  the  circumstances,  a 
question  of  fact  for  the  jury,  that  the  charge  was  erroneous ; 
and  that  the  error  Avas  not  cured  by  the  modification  after- 
wards made  of  the  charge,  because,  to  obviate  an  erroneous 
instruction  given  by  the  court  to  the  jury  upon  a  material 
point,  the  withdrawal  must  be  absolute  and  be  made  in  such 
2,7 


578  HOMICIDE.  [chap.  XXV. 

explicit  terms  as  to  preclude  the  inference  that  the  jury  might 
have  been  influenced  thereby. 

Where,  however,  instructions  are  given  upon  the  law  of 
murder  in  the  second  degree,  when  unwarranted  by  the  evi- 
dence, it  will  not  be  reversible  error  in  the  absence  of 
any  showing  that  the  verdict  of  guilty  of  murder  in  the 
first  degree  is  unjust  to  defendant  :^  nor  will  such  a  convic- 
tion be  reversed  because  such  unnecessary  instructions  were 
erroneous,  the  verdict  showing  them  to  have  been  immaterial.^ 

Where  the  defendant  has  been  convicted  of  murder  in  the 
second  degree,  and  has  obtained  a  new  trial,  it  is  unnecessary 
for  the  court  to  instruct  upon  the  degrees  of  malice,  or  upon 
the  law  of  premeditation  and  deliberation,  as  such  conviction 
of  murder  in  the  second  degree  works  an  acquittal  of  murder 
in  the  first  degree ;  and  a  statement  by  him  to  the  jury  to 
that  effect  is  proper.^ 

Sec.  526.    instructions   as    to    manslaiig-liter.  —  If,   on  a 

trial  for  murder,  there  is  no  evidence  upon  which  the  jury 
can  find  that  the  killing  was  done  in  the  sudden  heat  of  pas- 
sion, or  under  other  circumstances  reducing  the  crime  to 
manslaughter,  it  is  not  error  for  the  court  to  fail  or  refuse  to 
instruct  the  jury  upon  the  law  applicable  to  a  reduction  of 
the  homicide  from  the  grade  of  murder  to  that  of  man- 
slaughter.* Thus  in  State  v.  Downs,^  where  the  deceased  and 
the  defendant's  son  had  an  altercation,  and  the  defendant,  with- 
out warning,  stepped  up  behind  the  deceased  and  struck  him 
a  blow  which  killed  him,  he  was  not  entitled  to  an  instruction 

1  State  ;;.  Talbntt,  73  Mo.  347  (1880);  s.c.  3  S.  W.  Rep.  210;  Lum 
(1881).  Com/)are  State  i'.  Pliillips,  24  v.  State,  11  Tex.  App.  483  (1882); 
Mo.  475  (18u7).  Hill  r.  State,  11  Tex.  App.  450  (1882). 

2  State  V.  Ward,  74  Mo.  253  (1881);  It  is  said  in  State  v.  Patton,  12  La. 
State  V.  Kotovsky,  74  Mo.  247  (1881);  An.  288  (1857),  that  wliere  tlie  jury, 
State  V.  Ellis,  74  Mo.  207  (1881);  in  tryinjr  an  indictment  for  murder, 
State!;.  Erb,  74  Mo.  lOt)  (1881);  s.c.  have  the  power  to  find  the  prisoner 
Law.  Insan.  10.  guilty  of    nianslau_u;hter,  it    is    perti- 

2  Pliarr  v.  State,  10  Tex.  App.  485  ncntand  riolit  forthe  juilge  to  instruct 

(1881).  the    jury  in  the  law  both  of  murder 

*  People    V.   Estrado,  49  Cal.    171  and     manslaughter,    notwithstanding 

(1874)  ;    Dozier    v.  State,  26  Ga.  156  his  counsel    chose  to  assert  that  the 

(1858)  ;    Teal    v.    State,   22    Ga.    75  only  issue  for  the  jury  to  try  was  the 

(1857)  ;  s.c.  68  Am.  Dec.  482 ;  State  v.  sanity  of  tlie  accused. 
Hose,  92  Mo.  201  (1887)  ;  s.c.  4  S.  W.  ^'  91    Mo.  19  (1880)  ;  s.c.  3  S.  W. 

Rep.  733;  State  v.  Downs,  91  Mo.  19  Rep-  219. 


SEC.  527.]  INSTRUCTIONS    TO   THE   JURY.  579 

upon  the  law  of  manslaughter  in  the  first  degree.  But  the 
defendant  is  entitled  to  have  the  law  of  manslaughter  given 
to  the  jury,  if  there  is  any  evidence  whatever  to  which  it  is 
applicahle,  no  matter  how  weak  or  insufficient  it  may  appear 
to  the  court.^  The  law  of  involuntary  manslaughter  need 
not  be  given  where  the  indictment  charges  only  murder,  as  a 
conviction  for  involuntary  manslaughter  cannot  usually  be  had, 
except  under  an  indictment  strictly  charging  the  offence.^ 

In  McLaurin  v.  State,^  a  woman  with  whom  the  defendant's 
wife  was  on  bad  terms,  wliile  passing  the  defendant's  house, 
was  attacked  by  his  wife,  the  latter  using  only  her  hands ; 
the  other  struck  the  defendant's  wife  with  an  axe  handle,  by 
which  she  was  considerably  cut,  whereupon  the  defendant, 
who  had  taken  no  part  in  the  struggle,  seeing  his  wife  hurt 
and  bleeding,  shot  and  killed  the  other  woman  as  she  was 
moving  off.  The  court  held,  that  a  charge  to  the  jury  as 
to  the  law  of  murder  only,  and  a  refusal  to  charge  as  to  the 
law  of  manslaughter  was  erroneous. 

Sec.  527.    Instructions  as   to  excuse  on  justification. — 

Where  the  defendant  pleads  the  necessity  of  self-defence,  or 
other  legal  excuse  for  the  homicide,  he  is  entitled  to  have  the 
jury  instructed  upon  the  law  relating  thereto ;  *  but  where 
there  is  no  evidence  whatever  tending  to  show  that  the  kill- 
ing Avas  done  in  self-defence  or  in  the  reasonable  belief  of 
imminent  danger  to  the  defendant  from  deceased,  or  under 
other  circumstances  excusing  it,  it  is  proper  for  the  court  to 
ignore  the  question  of  self-defence  in  charging  the  jury.^ 

1  Payne  v.  Commonwoaltli,  1  Met.  *  Hindi  v.  State,  25  Ga.  099  (1858)  ; 
(Ky.)  370  (1858)  ;  McLaurin  v.  State,  Steinmeyer  v.  People,  95  III.  383 
G4  Miss.  529  (188(5)  ;  s.c.  1  So.  Rep.  (1880)  ;  State  v.  Sneed,  91  Mo.  255 
747;  Potter  v.  State,  85  Tenn.  88  (1887)  ;  s.c.  4  S.  W.  Rep.  411 ;  Potter 
(1880);  s.c.  1  S.  W.  Rep.  014;  Lis-  v.  State,  85  Tenn.  88  (1880);  s.c.  1 
kosski  V.  State,  23  Tex.  App.  105  S.  W.  Kep.  614;  McConncU  v.  State, 
(1887)  ;  s.c.  3  S.  W.  Rep.  090;  Rob-  22  Tex.  App.  354  (1880)  ;  s.c.  58  Am. 
erts  V.  State,  23  Tex.  App.  170  (1887)  ;  Rep.  047  ;  3  S.  W.  Rep.  699;  Elliston 
s.c.  4  S.  W.  Rep.  879;  McLaugiilin  r.  v.  State,  10  Tex.  App.  361  (1881); 
State,  10  Tex.  App.  340  (1881).  See  McLaugiilin  v.  State,  10  Tex.  App.  340 
United  States  v.  Armstrong,  2  Curt.  (1881);  Warren  t;.  State,  9  Tex.  App. 
C.  C.  446  (1855).  619  (1881)  ;  s.c.  35  Am.  Hep.  745.    See 

2  McWIiirt's  Case,  3  Gratt.  (Va.)  People  v.  Walter,  1  Idalio,  386  (1871)  ; 
594  (1846).  May  v.  State,  23  Tex.  App.  140(1887); 

3  64  Miss.  529  (1886);  s.c.  1   So.  s.c' 4  S.  W.  Rep.  591. 

Kep.  747,  5  Taylor    v.    State,    48    Ala.    180 


580  HOMICIDE.  [chap.  XXV. 

In  the  case  of  Potter  v.  State^  on  the  trial  of  an  indictment 
for  murder,  there  was  proof  that  the  deceased  was  a  quarrel- 
some, overbearing,  and  dangerous  man,  and  had  made  repeated 
threats  against  the  life  of  the  defendant,  some  of  which  had 
iDeen  and  some  had  not  been  communicated  to  him.  The  court 
omitted  to  instruct  the  jury  that  they  might  look  at  the  threats 
to  show  the  state  of  mind  of  the  defendant,  and  illustrate  his 
conduct  and  motive  in  connection  with  the  other  evidence,  and 
to  show  the  animus  of  the  deceased  and  his  motives  ;  and  the 
defendant  did  not  ask  for  such  an  instruction.  The  court 
held,  that  the  finding  of  the  jury  of  murder  in  the  first  degree 
could  not  negative  the  existence  of  a  defence  which  the  jury 
were  not  properly  instructed  to  consider ;  nor  would  the  court, 
in  a  case  involving  the  life  of  a  citizen,  or  his  hopeless  impris- 
onment, stand  on  any  nice  technicality  of  requiring  the  defend- 
ant to  have  demanded  an  instruction,  essential  to  a  fair  trial, 
which  the  law  is  supposed  to  guarantee  to  him  without  a  de- 
mand; and  that  the  omission  was  error  warranting  a  reversal. 

In  a  recent  Texas  case''^  the  evidence  showed  that  the 
defendant  and  the  deceased  had  had  a  controversy ;  that  the 
deceased  had  abandoned  it  and  the  defendant  had  renewed  it 
in  order  to  have  a  pretext  for  killing  the  deceased.  The 
court  said  that  there  was  no  issue  of  fact  as  to  the  defendant's 
intent  in  such  renewal,  and  that  it  was  not  necessary  for  the 
court  to  instruct  the  jury  on  that  point.  And  it  is  said  in  Var- 
nell  V.  State  ^  that  where  the  evidence  tended  to  show  that  the 
deceased  sought  the  defendant  after  an  act  of  carnal  inter- 
course between  the  defendant  and  the  deceased's  minor 
dausfhter  had  been  consummated  with  the  dauefhter's  consent, 
and  she  had  gone  away,  it  was  error  to  charge  the  jury  witli 
respect  to  the  father's  right  to  interfere  to  prevent  the  seduc- 
tion of  his  daughter,  and  the  defendant's  culpability  for  the 
killing  under  such  circumstances. 

(1872)  ;  Varnell  ;;.  State,  26  Tex.  App.  AV.  Rep.  411  ;  Honeycutt  v.  State,  8 

M  (1888)  ;  s.c.  9  S.  W.  Kep.  (55;  Allen  Caxt.  (Tenn.)  371  (1875). 

r.   State,   24    Tex.   App.  216    (1888);  '  85  Tenn.  88  (1886)  ;  .s.c.  1  S.  W. 

s.c.  6  S.  W.  Kep.  187.     See  Epps  v.  Rep.  614. 

State,  1!)  Ga.   102   (1855)  ;    Jarrell  v.  2  Allen  v.  State,  24  Tex.  App.  216 

State,   58   Ind.  293   (1877)  ;   State   v.  (1887)  ;  s.c.  6  S.  W.  Rep.  187. 

Sneed,  91  Mo.  552  (1887)  ;  s.c.  4  S.  ^  26  Tex.  App.  56  (1888)  ;  s.c.  9  S. 

W.  Rep.  65. 


SEC.  530.]  INSTRUCTIONS   TO   THE   JURY.  581 

Sec.  528.  instructions  as  to  competency  and  weight  of 
evidence.  —  On  the  trial  of  an  indictment  for  homicide,  where 
an}'  part  of  the  testimony  which  has  been  adduced  has  an 
'artificial  importance  given  to  it  by  the  law,  or  a  presump- 
tive weight  it  is  the  duty  of  the  court  to  instruct  the  jury 
on  such  and  explain  the  general  rule.^  The  defendant  is 
always  entitled  to  have  the  jury  clearly  instructed  as  to  the 
doctrine  of  reasonable  doubt ;  and  where  the  testimony  is 
entirely  circumstantial,  the  court  should  state  to  the  jury  the 
rules  which  regulate  the  application  of  circumstantial  evi- 
dence in  cases  of  homicide.^  But  that  is  not  necessary  where 
there  is  any  direct  proof  of  the  defendant's  guilt.^ 

Where  testimony  is  admitted  upon  the  representation  of 
counsel,  that  it  will  subsequently  be  connected  with  addi- 
tional evidence  so  as  to  render  it  material,  and  the  promise  is 
not  fulfilled,  the  court  should  conclusively  direct  the  jury  to 
exclude  such  testimony  entirely  from  their  consideration.* 

Sec.  529.  instructions  as  to  verdict.^ — It  is  not  essential 
to  the  sufficiency  of  the  charge  that  it  should  instruct  the 
jury  as  to  the  forms  of  verdicts  which  may  be  rendered  by 
them,  although  it  is  entirely  proper  to  do  so ;  but  when  such 
instructions  are  given,  they  should  embrace  every  verdict 
which  might  be  rendered  in  the  case,  so  as  to  avoid  conveying 
to  the  minds  of  the  jury  any  impression  as  to  the  opinion  of 
the  court  as  to  which  of  every  verdict  might  or  should  be 
rendered.^ 

Sec.  530.  instructions  as  to  punishment.  —  Where  the 
jury  must  or  may  fix  the  punishment,  they  should  be  in- 
structed as  to  the  proper  punishment  for  all  grades  of 
homicide,  for  any  of  which  they  have  the  right  to  convict 
the  defendant,  and  as  to  the  limits  of  such  punishment." 

In  Texas,  since  the  adoption  of  the  new  constitution,  it  is 
the  duty  of  the  district  judge,  on  the  trial  of  an  indictment 

1  Brown  v.  State,  23  Tex.  195  *  State  i'.  McDonnell,  32  Vt.  491 
(1859).                                                          (I860). 

2  People  V.  Lachanais,  32  Cal.  433  ^  See  post,  §  535. 

(1867).  ^  Williams  v.  State,  24  Tex.  App. 

3  McDaniel   v.  State,   16  Miss.   (8  637  (1888)  ;  s.c.  7  S.  W.  Rep.  333. 
Smed.  &  M.)  401  (1847);  s.c.  47  Am.  "  Marshall   v.   State,   33   Tex.  664 
Dec.  93.  (1871). 


582  HOMICIDE.  [chap.  XXV. 

for  murder,  to  instruct  the  jury  that  they  have  the  power  to 
commute  the  death  penalty  to  imprisonment  at  hard  labor 
for  life ;  and  if  this  instruction  is  omitted,  and  the  accused 
convicted  of  murder  in  the  first  degree,  the  case  will  be 
reversed  and  remanded. 

Sec.  531.  Repetition  of  instruction.  —  The  meaning  of  a 
charge  is  not  to  be  determined  by  selecting  and  disconnecting 
particular  sentences  and  considering  them  without  reference 
to  the  context,  but  all  its  parts  must  be  considered  in  connec- 
tion with  each  other.  Therefore,  where  the  court  has  once 
instructed  the  jury  as  to  the  law  relating  to  a  particular  phase 
of  the  crime  charged  correctly  and  to  the  point,  it  is  not 
bound  to  repeat  such  instructions  expressly  in  connection 
with  other  ingredients  of  the  crime.^ 

Sec.  532.    Sufficiency  of    insti-uctions  as  to  form.  —  No 

rule  can  be  laid  down  which  prescribes  the  forms  in  which 
each  instruction  upon  trials  of  indictments  for  homicide  must 
or  may  be  given,  but  this  depends  entirely  upon  the  circum- 
stances of  each  particular  case,  to  be  determined  in  the 
discretion  of  the  court-;  it  may  be  generally  stated,  however, 
that  the  language  of  the  instructions,  and  the  form  and  con- 
nection in  which  they  are  given  should  not  be  such  as  to 
mislead  the  jury,  but  should  be  clear  and  unequivocal,  and 
incapable  of  misinterpretation.^ 

1  Stanton  v.  State,  13  Ark.  317  74  Cal.  642  (1888)  ;  s.c.  10  Pac.  Rep- 
(1853);  Jordan  v.  State,  10  Tex.  479  510;  Feople  v.  Gonzales,  71  Cal.  5(50 
(1853).  (1887);   s.c.  9  Or.  L.  Mag.  307;    12 

2  See  Gunter  v.  State,  83  Ala.  9G  Pac.  Hep.  783;  People  v.  Welch,  49 
(1887)  ;  s.c.  10  Cr.  L.  Mag.  428;  3  Cal.  177  (1874);  People  v.  Best,  39 
So.  Rep.  600;  Pallin  v.  State,  83  Ala.  Cal.  690  (1870);  People  v.  Moore,  8 
5(1888);  s.c.  3  So.  Kep.  525;  Brown  Cal.  90  (1857);  People  v.  Quincy, 
V.  State,  83  Ala.  33  (1887)  ;  s.c.  3  So.  8  Cal.  89  (1857)  ;  Redus  v.  People,  10 
Rep.  857;  Amos  v.  State,  83  Ala.  1  Colo.  208^(1887);  s.c.  14  Pac.  Rep. 
(1887);  s.c.  3  So.  Rep.  749;  Williams  323;  Blachnan  v.  Slate,  78  Ga.  592 
V.  State,  81  Ala.  1  (1886)  :  s.c.  9  Cr.  (1887)  ;  s.c.  10  Cr.  L.  Mag.  71  ;  3 
L.  Mag.  480;  1  So.  Rep.  179;  Hamp-  S.  E.  Rep.  418;  Edwards  j;.  State,  53 
ton  j;.  State,  45  Ala.  82  (1871);  Dill  Ga.  428  (1874);  Prcssley  r.  State, 
V.  State,  25  Ala.  15  (1854);  Felix  v.  19  Ga.  192  (1855);  Anderson  y.  State, 
State,  18  Ala.  720  (1851);  Pierson  v.  14  Ga.  709  (1854);  Holder  v.  State, 
State,  12  Ala.  149  (1847)  ;  Howard  5  Ga.  441  (1848);  Monroe  r.  State,  5 
V.  State,  34  Ark.  433  (1879)  ;  Atkins  Ga.  85  (1848) ;  Spies  v.  People  (Anar- 
I,'.  State,  16  Ark.  568  (1855)  ;  People  cliists'  Case),  122  111.  1  (1887)  ;  s.c.  9 
t;.  Williams,  75  Cal.  306  (1888)  ;  s.c.  Cr.  L.  Mag.  829;  3  Am.  St.  Rep.  320; 
17  Pac.  Rep.  211;  People  v.  Giancoli,  6   Am.  Cr.  Rep.  570;  12  N.  E,  Rep, 


SKC.  532.] 


INSTRUCTIONS   TO   THE   JURY. 


588 


Thus  an  instruction  to  the  jury  that  they  "have  no  right  to 
hold  the  hiw  to  be  otherwise  in  any  particuLar  than  as  given 
to  them  by  the   court,"  is  not    erroneous.^     An  instruction 


8(5.5;  17  N.  E.  Rep.  898;  Crews  v. 
People,  120  111.  .317  (1887);  s.c.  11 
N.  E.  Rep.  404;  Gaineij  v.  People,  i)7 
111.  270  (1881)  ;  s.c.  37  Am.  Rep. 
100;  Alexaiuler  v.  People,  00  111.  00 
(ISSO)  ;  B.arnett  v.  People,  54  111.  325 
(l-!70);  Miiher  r.  People,  24  111.  241 
(1800);  MayfieUl  v.  State,  110  Iiid. 
•Vll  (1880);  s.c.  11  N.  E.  Rep.  018; 
Wade  V.  State,  71  Iiul.  5.']5  (1880); 
Jaekman  v.  State,  71  Ind.  140  (1880) ; 
Snyder  v.  State,  50  Ind.  105  (1877)  ; 
Kini,rcn  v.  State,  45  Ind.  519  (1874)  ; 
Rland  r.  State,  2  Ind.  008  (1851)  ; 
State  V.  Donnelly,  00  Iowa,  705  (1880); 
s.c.  27  N.  W.  Rep.  300 ;  State  i'.  Mahan, 
(i8  Iowa,  .304  (1880)  ;  s.o.  20  N.  W. 
Rep.  440;  27  N.  W.  Rep.  249;  State 
I'.  McCormiek,  27  Iowa,  402  (1809)  ; 
State  V.  Johnson,  8  Iowa,  -525  (18.39)  ; 
s.c.  74  Am.  Dec.  321 ;  State  v.  Gillit;k, 
7  Iowa,  287  (1858)  ;  State  v.  Baldwin, 
30  Kan.  1  (1880)  ;  s.c.  9  Or.  L.  Ma^. 
40;  12  Pac.  Rep.  318;  affirming  s.c. 
7  Cr.  L.  Mag.  512 ;  Radford  v.  Com- 
monwealth (Ky.),  5  S.  W.  Rep.  .343 
(1887)  ;  Coffwan  v.  Commonwealth,  10 
Bush  (Ky.),  495  (1874)  ;  s.c.  1  Am. 
Cr.  Rep.  293;  Williams  r.  Common- 
wealth, 9  Bush  (Ky.),  274  (1872); 
Smith  )•.  Commonwealth,  1  Duv.  (Ky.) 
224  (1804)  ;  Jane  v.  Commonwealth, 
2  Met.  (Ky.)  30  (18,39)  ;  State  r. 
Ricks,  32  La.  An.  1098  (1880) ;  Nye 
V.  People,  35  Mich.  10  (1870)  ;  Burden 
r.  People,  20  Mich.  102  (1872)  ; 
Maher  v.  People,  10  Mich.  212  (1802); 
Clenn  i-.  State,  (54  Miss.  724  (1887)  ; 
s.c.  2  So.  Rep.  109;  Wesleij  v.  State, 
37  Miss.  327  (18.50)  ;  s.c.  75  Am.  Dec. 
(52  ;  Mask  v.  State,  30  Miss.  77  (18.58); 
Moles  V.  State,  17  Miss.  (9  Smed.  & 
M.)  284  (1848)  ;  McDaniel  v.  State, 
10  Miss.  (8  Smed.  &  M.)  401  (1847); 
State  V.  Walker,  98  Mo.  95  (1888)  ; 
s.c.  9  S.  W.  Rep.  640  ;  State  v.  Brooks, 
94  Mo.  121  (1887)  ;  s.c.  7  S.  W.  Rep. 
24  ;  State  v.  Leabo,  89  Mo.  247  (1880); 
s.c.  1  S.  W.  Rep.  288;  State  r.  Hayes, 
89  Mo.  202  (1880)  ;  s.c.  1  S.  W.  Rep. 


305 ;  State  v.  Ellis,  74  Mo.  207  (1881)  ; 
State  r.  Edwards,  71  Mo.  312  (1879)  ; 
State  V.  Dearing,  05  Mo.  5-30  (1877)  ; 
State  V.  Byrne,  24  Mo.  151  (18.50); 
State  V.  Dillihunty,  18  Mo.  331  (1853); 
Schlencker  r.  State,  9  Neb.  .300  (1879)  ; 
s.c.  2  N.  W.  Rep.  710;  State  v.  St. 
Clair,  10  Kev.  207  (1881);  State  v. 
Frazer,  14  Nev.  210  (1879);  State  v. 
Floyd,  G  Jones  (N.  C),  L.  392  (18.59); 
State  V.  Simmons,  6  Jones  (N.  C),  L. 
21  (1858)  ;  State  v.  Harrison,  5  Jones 
(N.  C),  L.  115  (1857);  State  v. 
Owen,  Phill.  (N.  C.)  L.  425  (1868)  ; 
Smith  r.  State,  41  N.  J.  L.  (12  Vr.) 
370  (1879);  McNevins  v.  People,  61 
Barb.  (N.  Y.)  307  (1872)  ;  Pfomer  v. 
People,  4  Park.  Cr.  Cas.  (N..  Y.)  558 
(1800);  Stephens  v.  People,  4  Park. 
Cr.  Cas.  (N.  Y.)  390  (18.59);  People 
V.  Quin,  1  Park.  Cr.  Cas.  (N.  Y.)  340 
(18.52)  ;  Beaudien  i'.  State,  8  Oliio  St. 
634  (1858)  ;  Robbins  v.  State,  8  Ohio 
St.  131-  (1857)  ;  Stewart  v.  State.  1 
Ohio  St.  00  (18.52)  ;  Lane  v.  Com- 
monwealth, 59  Pa.  St.  371  (1808);  Kil- 
patriek  v.  Commonwealth,  31  Pa.  St. 
198  (1858);  Small  v.  Commonwealth,  91 
Pa.  St.  304  (1879)  ;  s.c.  1  Cr.  L.  Mag. 
331;  State  r.  Jacobs,  28  S.  C.  29 
(1887)  ; -State  i:  Coleman,  20  S.  C. 
441  (1883)  ;  State  r.  Stark,  1 
Strobh.  (S.  C.)  L.  479  (1847);  Rea 
V.  State,  8  Lea  (Tenn.)  350  (1881); 
Anderson  r.  State,  31  Tex.  440  (1868)  ; 
Monroe  v.  State,  2?>  Tex.  210  (1859); 
s.c.  70  Am.  Dec.  58;  Barron  v.  State, 
23  Tex.  App.  402  (1887)  ;  s.c.  5  S.  W. 
Rep.  237;  McCullough  v.  State,  23 
Tex.  App.  020(1887);  s.c.  5  S.  W.  Rep. 
175;  Hill  c.  State,  11  Tex.  App.  450 
(1882)  ;  Holmes  v.  State,  11  Tex.  App. 
223  (1882)  ;  Greta  i-.  State,  9  Tex. 
App.  420  (1881);  Harrison  r.  State, 
9  Tex.  App.  407  (1881);  Murray  r. 
State,  1  Tex.  App.  417  (1877) ;  Dick- 
enson V.  State,  48  Wis.  288  (1879); 
s.c.  4  N.  W.  Rep.  321. 

1  Robbins  v.  State,  8  Ohio  St.  131 
(1857). 


584 


HOMICIDE. 


[chap.  XXV 


that  the  jury  should  find  the  accused  "  guilty  of  murder  in  the 
first  degree,  or  not  guilty,  according  as  they  should  find  the 
fact,"  even  if  understood  as  requiring  them  to  acquit  him 
entirely  in  case  they  should  not  find  him  guilty  of  murder  in 
the  first  degree,  does  not  contain  any  error  injurious  to  the 
defendant.!  And  it  is  thought  that  a  charge  by  the  court  in 
making  the  distinction  between  murder  in  the  first  and  second 
degree,  that  "  if  you  believed  the  defendant  killed  the  deceased 
in  a  sudden  and  unexpected  fight  without  previous  malice, 
and  with  no  time  for  deliberation,  and  no  previously  formed 
design,  then  he  will  be  guilty  of  murder  in  the  second  degree," 
is  not  such  a  charge  as  is  calculated  to  mislead  the  jury,  and 
preclude  them  from  finding  a  verdict  of  manslaughter.^ 


1  Dickerson  r.  State,  48  Wis.  288 
(1879)  ;  s.c.  4  N.  W.  Rep.  821. 

2  Anderson  v.  State,  31  Tex.  440 
(1868). 

An  instruction  which  declares  that 
if  the  jury  find  that  defendant  killed 
liis  wife  "  by  choking  and  strangling 
her,  by  fixing,  fastening,  &c.,  his  hand 
about  her  neck  and  throat,  and  then  by 
throwing  her,  so  choked  and  strangled, 
into  the  well,"  &c.,  then  they  should 
return  a  verdict  of  guilty,  is  not  to  be 
construed  as  a  direction  to  find  him 
guilty  if  they  find  that  he  "first 
choked  his  wife  to  death,  and  then 
drowned  her  in  a  well  "  ;  but  means 
that  if  they  find  she  was  killed  by  all 
the  means  so  employed  conjointly, 
and  by  none  of  them  separately,  they 
should  return  a  verdict  of  guilty. 
State  V.  Leabo,  89  Mo.  247  (1886)  ; 
s.c.  1  S.  \V.  Rep.  288. 

On  trial  of  indictment  for  murder, 
and  for  being  an  accessory  thereto, 
the  court  instructed  the  jury:  "By 
his  testimony  he  charges  the  murder 
upon  the  wife  of  the  victim.  In  so 
doing,  lias  he  kept  back  and  concealed 
what  would,  if  divulged,  implicate 
himself  in  the  commission  of  the 
deed,  or  show  that  lie  aided  and  as- 
sisted the  woman  in  its  commission^ 
Has  he  told  the  whole  Irutli  in  respect 
to  the  deatli  of  deceased^  Has  he 
satisfied  you  that  tlie  woman,  alone 
and    uiiaiili'd,  perpetrated  the  crime? 


If  you  are  satisfied  that  he  has  not 
told  the  whole  truth  in  respect  to  the 
death  of  the  deceased ;  that  lie  has 
kept  back  and  concealed  important 
facts  and  circumstances  connected 
with  such  death  ;  if,  from  the  nature 
of  things,  you  are  satisfied,  from  the 
testimony  that  you  regard  as  reliable, 
that  something  must  have  been  done 
in  taking  the  life  of  deceased  other 
than  what  he  has  stated  ;  what  does 
such  testimony  justify  you  in  believ- 
ing has  been  suppressed  by  the  de- 
fendant And  docs  what  has  been 
suppressed  implicate  him  as  aiding 
and  assisting  in  the  commission  of 
the  deed  and  how  ?  These  and  like 
questions  are  important  for  your  con- 
sideration in  determining  whether  the 
defendant  be  or  be  not  guilty."  Held, 
not  liable  to  the  objection  that  it  left 
the  jury  to  find  defendant  guilty  upon 
conjecture,  or  otherwise  than  upon 
the  evidence.  Dickerson  v.  State,  48 
Wis.  288  (1879). 

Where,  on  a  trial  for  murder,  the 
court,  in  relation  to  the  dying  declara- 
tions of  the  deceased,  instructed  the 
jury  as  follows  :  "  If  you  receive  them 
as  true,  it  will  be  your  duty  to  find 
the  defendant  guilty  of  murder  in  the 
first  degree,  because  they  show  that 
it  was  done,  either  in  the  perpetration 
of,  or  attempt  to  perpetrate  a  rob- 
bery"; and  where  the  court,  in  re- 
sponse to  an  interrogatory  of  the  jury, 


SEC.  533.]  INSTRUCTIONS    TO    THE   JURY.  585 

In  a  prosecution  for  murder  in  the  first  degree,  a  charo-e 
that  "  no  matter  what  the  provocation ;  no  matter  wliat  tlie 
heat  of  passion ;  no  matter  if  there  were  any  previous 
assaults ;  no  matter  what  the  other  surrounding  circum- 
stances might  have  been ;  unless  the  act  was  justifiable,  if 
there  was  a  premeditated  design  to  produce  death,  it  is  murder 
in  the  first  degree  "  is  not  erroneous,  it  being  clear  from  the 
whole  charge  that,  by  the  provocation  and  heat  of  passion 
here  spoken  of,  were  meant  such  as  are  not  incompatible 
with  the  formation  in  the  mind  of  the  accused  of  a  deliberate 
j)remeditated  design  to  kill  the  deceased.^  A  charge  that 
"•  it  is  the  duty  of  the  person  assaulted  to  retire  to  what  is 
termed  the  wall  or  ditch,  before  he  is  justified  in  repelling  an 
assault  by  taking  the  life  of  an  assailant.  But  cases  fre- 
quently arise  where  the  assault  is  made  with  a  danggrous  or 
deadly  weapon  and  so  fiercely  as  not  to  allow  the  party 
assaulted  to  retire  without  manifest  danger  to  his  life,  or 
great  bodily  injury;  in  such  cases  he  is  not  required  to 
retreat "  is  not  objectionable  as  holding  by  implication  that 
the  defendant  was  only  excused  from  retreating  M-here  it 
would  be  manifestly  dangerous  to  attem[)t  it.^ 

The  deliberation  and  premeditation  necessary  to  constitute 
murder  in  the  first  degree  may  be  inferred  from  the  circum- 
stances of  the  killing,  and  the  jury  may  be  so  instructed.'^ 

Sec.  58-3.  Same  —  Contradictory  and  niisleadinj^  in- 
structions.—  All  contradictory  and  misleading  instructions 

further  said  :  "  That  if  you  slioukl  be-  into  what  was  said  by  the  deceased  on 
lieve  that  the  deceased  was  mistaken  the  subject  of  defendant's  object  in 
as  to  tlie  object  the  defenihint  had  in  inllicting  tlie  wound,  you  may  inquire 
killint;  {i.e.  for  his  money),  and  that  whether  he  meant  to  say  that  a  rob- 
all  the  otiier  declarations  were  true,  bery  had  been  committed,  or  whether 
and  are  satisfied,  from  the  circum-  he  referred  to  the  intention  of  defend- 
stances  detailed  by  the  testimon^'jtliat  ant  in  making  the  assault."  Held, 
tlie  murder  was  wilful,  deliberate,  and  that  taking  tlie  instructions  together, 
committed  with  malice  aforethought,  the  first  was  not  objectionable,  or  at 
the  verdict  should  be  for  murder  in  least  not  so  much  so  as  to  alone  jus- 
the  first  degree.  You  can  find  a  ver-  tify  a  reversal  of  the  cause.  State  v. 
diet  of  guilty  of  murder  in  the  second  Johnson,  8  Iowa,  525  (1859);  s.c.  74 
degree,  if  the  murder  was  wilful,  and  Am.  Dec.  821  (1859). 
with  malice  aforethought,  though  not  ^  Roman  v.  State,  41  Wis.  312 
deliberate  and  premeditated,  provided  (1877). 

you  are  not  satisfied  that  it  was  com-  -  State  v.   Donnelly,  G9   Iowa,  705 

mitted  in  the  perpetration,  or  attempt  (188f))  ;  s.c.  27  N.  W.  Kep.  .369. 

to  perpetrate,  a  robbery.     In  inquiring  ^  State    v.    Walker,    98     Mo.     95 


586  HOMICIDE.  [chap.  XXV. 

are  erroneous,  and  a  ground  for  reversing  a  conviction  in 
those  cases  where  the  error  was  of  a  substantial  kind,  and 
prejudicial  to  the  defendant.  Thus  an  instruction,  that  "•  the 
necessity  for  the  killing  must  be  apparent,  actual,  imminent, 
absolute,  and  unavoidable,"  is  contradictory  and  misleading.^ 
And  an  instruction  that,  if  homicide  be  committed  by  a 
deadly  weapon  in  the  previous  possession  of  the  slayer,  the 
law  implies  malice  in  the  perpetrator,"  given  without  qualifi- 
cation, is  wrong  and  misleading.^ 

In  the  recent  case  of  Radford  v.  Commonwealth,^  on  a  pros- 
ecution for  manslaughter,  the  trial  court  instructed  the  jury 
that  if  they  believed  "  that  the  defendant  shot  and  killed  the 
deceased,  he,  the  said  defendant,  not  being  himself  the  attack- 
ing party  in  said  encounter,  yet  had  reasonable  grounds  to 
believe  q^nd  did  believe  his  life  was  then  in  danger,  then  said  de- 
fendant had  the  right  to  use  such  means,"  &C.  The  appellate 
court  held  the  instruction  in  regard  to  the  defendant's  not 
being  the  attacking  party  was  misleading,  in  view  of  the 
fact  that  the  jury  may  have  thought  that  the  mere  taking  of 
the  gun  along  by  the  accused,  which  the  evidence  tended  to 
show  was  for  the  purpose  of  protecting  himself,  amounted 
to  an  attack  upon  the  deceased. 

Sec.  534.  Same  —  Using-  figure  of  speech.  —  An  instruc- 
tion that  the  killing  will  be  manslaughter,  if  the  reason 
of  the  prisoner  was  temporarily  dethroned  by  passion,  is  a 
figure  of  speech  which  ought  not  to  be  used  by  a  judge  in 
his  charge  to  the  jury,  on  a  trial  for  murder,  as  they  may 
infer  therefrom  that  no  sudden  heat,  short  of  the  dethrone- 
ment of  reason,  will  mitigate  a  killing  to  manslaughter ; 
hence  it  is  error  so  to  charge."^ 

Sec.  535.    Same  —  Instructions  as  to  form  of  verdict/^  — 

The  court  should  instruct  the  jury  as  to  the  proper  form  of 
the  verdict.  In  the  famous  Anarchists'  Case  the  trial  court 
instructed  the  jury  as  to  the  form  of  their  verdict,  as  follows : 
"If   all    the    defendants  are  found  guilty,  the  form  of  the 

(1888);  s.c.  9  S.  W    Rep.  640;  State  2  Smith  r.  Conimoiiwealtli,  1   Diiv. 

V.  Grant,  76  Wis.  247.  (Ivy.)  224  (1864). 

1  People  V.   Gonzales,  71    Cnl.  500  3  5  s.  W.  Rep.  (Ky.)  34:1  (1887). 

(1887)  ;   s.c.  9  Cr.  L.  Mag.  307;   12  *  Bland  r.  State,  2  Ind.  008  (1851). 

Pac.  Kep.  783,  '^  See  ante,  §  529. 


SEC.  536.]  INSTRUCTIONS   TO   THE   JURY.  587 

verdict  will  be,  '  We,  the  jury,  find  the  defendants  guilty  of 
murder,  in  manner  and  form  as  charged  in  the  indictment,' 
and  fix  the  penalty.  ...  If  all  are  found  not  guilty,  the  form 
of  the  verdict  will  be,  '  We,  the  jury,  find  the  defendants  not 
guilty.'  "  And  correspondingly,  in  case  part  were  found 
guilty  and  part  not  guilty.  The  verdict  was,  guilty  of 
murder.  It  was  objected  by  the  defendants,  that' under  this 
instruction,  the  jury  were  obliged  to  find  the  defendants 
guilty  or  not  guilty  of  murder,  whereas  the  jury  were  entitled 
to  find  that  the  offence  was  a  lower  grade  of  homicide  tlian 
murder,  if  the  evidence  so  warranted.  But  the  objection 
was  not  well  taken.  If  the  defendants  desired  to  have  the 
jury  differently  instructed,  they  should  have  prepared  an 
instruction  accordingly.^ 

An  immaterial  omission  in  instructing  the  jury  as  to  the 
form  of  their  verdict,  will  not  vitiate  such  instruction,  but  a 
material  one  will.  Thus  in  Hill  v.  State  ^  an  instruction 
that  in  the  event  of  finding  from  the  evidence  that  the  de- 
fendant was  guilty  of  murder  in  the  second  degree,  the  jury 
should  assess  his  punishment  at  confinement  in  the  peniten- 
tiary for  any  length  of  time,  "  not  less  than  five,"  omitting 
"  years,"  was  held  to  be  fatally  defective. 

Sec.  536.  Written  instructions.  —  It  is  sometimes  pro- 
vided by  statute  that  the  instructions  of  the  court  in  cases  of 
homicide  shall  be  in  writing.  Such  a  provision  must  be  in- 
terpreted as  referring  to  the  charge  of  the  court  to  the  jury 
upon  the  law  of  the  case,  and  not  a  mere  direction  given  to 
them,  incidentally  or  otherwise,  as  to  a  former  procedure.^ 
Where  such  a  statutory  provision  exists,  it  will  always  be 
presumed,  in  favor  of  the  regularity  of  the  proceedings,  that 
it  was  complied  with  in  the  absence  of  a  showing  to  the 
contrary,  and  the  record  need  not  expressly  show  that  such 
was  the  case.* 

1  Spies  V.  People,  122  111.  1  (1887)  ;  upon  the  court  directed  them  orally 
s.c.  9  Cr.  L.  Mag.  829;  3  Am.  St.  to  return  and  "to  find"  in  what 
Rep.  .320;  6  Am.  Cr.  Rep.  570;  12  degree.  Held,  that  this  was  not  a 
N.  E.  Rep.  865;  17  N.  E.  Rep.  898.  charge  whicli  was  required  to  be  in 

2  11  Tex.  App.  456  (1882).  writing.     People    v.  Bonney,   19   Cal. 

3  A    jury,    in    a    murder   case,   re-  42(5  (1861). 

turned  a  general  verdict  of  guilty,  as  *  People  u.  Chung  Lit,  17  Cal.  320 

charged    in    the    indictment;    where-     (1861). 


688  HOMICIDE.  [chap.  XXV. 

Sec.  537.    Instruction  as  to  evidence  of    accomplice.  — 

The  question  whether  or  not  a  judge,  in  charging  a  jury, 
should  or  should  not  caution  them  that  the  evidence  of  an 
accomplice  should  be  corroborated,  is  not  a  matter  for  a  court 
to  review  on  a  case  reserved,  for  it  is  not  a  question  of  law, 
but  one  of  practice,  though  a  practice  which  should  not  be 
omitted.^ 

Sec.  538.    Instruction  as  to  reasonable  doubt  and  alibi. 

—  It  has  been  said  that  in  a  murder  trial,  after  instructing 
the  jury  that  "  if  there  is  in  this  case  a  reasonable  doubt  it 
will  be  your  duty  to  acquit,"  and  ''  if  upon  the  whole  evi- 
dence there  is  not  a  reasonable  doubt  it  will  be  your  duty  to 
convict,"  the  judge  instructed  the  jnry  that  "an  alihi^  when 
established  to  the  satisfaction  of  the  jury,  is  as  conclusive 
a  defence  as  can  possibly  be  interposed;  that  it  need  not  be 
established  beyond  a  reasonable  doubt,  but  it  should  be  estab- 
lished to  the  satisfaction  of  the  jury,"  the  charge,  taken  as  a 
whole,  is  correct.^ 

1  Reg.  V.   Stubbs,  7   Cox  C.  C.  48,  2  People   v.  Stone,  117    N.  Y.   480. 

and  Reg.  v.  Beckvvith,  8  Car.  &  P.  277,     (1889). 
followed  Reg.  v,  Andrews,  Ont.  Rep. 
C.  P.  D.  184. 


CHAPTER   XXVI. 

DISAGREEMENT   AND   EE-TRIAL. 

Sec.  539.     Discretion  of  trial  court. 
Skc.  540.     Same  —  Continuance. 

Sec.  539.  Discretion  of  trial  court.  —  The  discharging 
of  the  jury  because  of  inability  to  agree  upon  a  verdict,  in 
the  trial  of  an  indictment  for  homicide,  is  a  matter  almost 
exclusively  within  the  discretion  of  the  court,  which  will  not 
be  disturbed,  even  in  a  capital  case,  except  where  gross"  abuse 
is  clearly  shown  ;  and  all  presumptions  are  in  favor  of  the 
correctness  of  the  action  of  the  court  in  discharging  a  jury 
because  of  disagreement.^ 

Sec.  540.  Same  —  Continuance.  —  Where  the  jury  in  a 
case  of  homicide  has  disagreed,  and  has  been  discharged,  it 
is  usual  to  continue  the  case  until  the  next  term  of  the  court; 
but  this  is  within  the  discretion  of  the  trial  court,  and  it  is 
no  error,  even  in  a  capital  case,  to  proceed  t(5  a  second  trial 
before  another  jury  at  the  same  term  of  the  court.^ 

1  See  State   v.  Dunn,  80  Mo.  681  2  state    v.    Allen,    47    Conn.    121 

(1883).  (1879). 

589 


CHAPTER   XXVII. 

THE   VERDICT. 

Sec.  541.  Time  and  manner  of  rendition. 

Sec.  542.  Form  of  verdict  —  Specifyin-;^  tlie  degree  of  guilt. 

Sec.  543.  Same  —  Variance  from  indictment — Effect. 

Sec.  544.  Same  —  Amending  form  of  verdict. 

Sec.  545.  Same  —  Assessing  tlie  punisliment. 

Sec.  54(3.  Same  —  Constitutionality  of  statute. 

Sec.  547.  Specifically  acquitting  of  higher  or  lower  degree. 

Sec.  <548.  Naming  the  defendant. 

Sec.  549.  Specifying  the  count  sustained. 

Sec.  550.  Recommendation  of  mercy. 

Sec.  551.  Errors  in  spelling  and  bad  grammar 

Sec.  552.  Same  —  Idem  sonaiis. 

Sec.  553.  Polling  the  jury. 

Sec.  541.  Time  and  manner  of  rendition.  —  There  is  no 
prescribed  time  when  a  verdict  in  a  homicide  case  must  be 
rendered,  except  that  it  must  be  received  at  some  time  during 
the  term  at  which  the  trial  takes  place,  and  in  open  court.^ 
But  it  is  thought  that  although  the  statute  specifies  that  a 
verdict  shall  be  rendered  in  open  court,  it  will  not  be  set 
aside  because  received  after  adjournment  for  the  night,  the 
judge,  officers  of  the  court,  the  defendant  and  his  counsel 
being  present,  and  the  defendant  by  his  counsel  having  de- 
manded the  polling  of  the  jury.^ 

Unlike  olher  proceedings,  the  verdict  may  be  received  and 
the  jury  discharged  on  Sunday  ;  and  a  judgment  of  conviction 

^  Where,  in  a  criminal  case,  a  judge  ated    as    an    adjournment    sine    die; 

adjourned    the    court  at  (J  r.M.  until  therefore  that  the  verdict  received  on 

noon  of  the  next  day,  which  was  in  the  next  day  from  the  jury  out  when 

the  next  term,  placing  no  reason  for  tiie  court  adjourned  was  not  received 

such  adjournment  upon  the  record,  it  during  the   term,  and   was  a  nullity, 

was  held  tiiat  he  had  no  right  to  so  Morgan  )•.  State,  12  Ind.  448  (1859). 
adjourn  under  the  statute ;  therefore  '^  State    v.   McKinney,  31    Ka.  570 

that  the  order  was  not  a  good  adjourn-  (1884)  j  s.c.  3  Pac.  Hep.  35G. 
ment  to  the  next  day,  but  only  opcr- 

590 


SEC.  544.] 


THE   VERDICT. 


591 


rendered  on  a  regular  court  day  will  not  be  invalidated 
because  the  verdict  is  found  and  reported  on  Sunday.^ 

Sec.  542.  Form  of  verdict  —  Specifying-  the  <lej?rce  of 
guilt.  —  On  the  trial  of  an  indictment  for  murder  in  the  first 
degree,  a  verdict  of  guilty  must  specify  the  degree  of  which 
the  defendant  is  convicted.  A  statement  that  "■  the  defendant 
is  found  guilty  in  manner  and  form  as  charged  in  the  indict- 
ment*' is  not  sufficient,^  even  though  the  offence  is  charged 
to  have  been  committed  by  poisoning.^ 

Sec.  543.    Same  —  A^ariance   from    indictment  —  Effect. 

—  A  variance  between  the  indictment  and  tlie  verdict  re- 
turned is  fatal.  Thus  it  has  been  said  that  Avhere  the  intent 
was  averred  to  be  "to  kill  and  murder,"  and  the  intent  found 
by  the  jury  was  "  to  commit  manslaughter,"  another  and  dis- 
tinct felony,  the  variance  is  fatal."* 

Sec.  544.  Same  —  Amending  form  of  verdict.  —  In  State 
V.  Potter,^  in  a  charge  of  murder  in  the  second  degree,  the 
jury  returned  a  verdict  as  follows :  "  We,  the  jury,  find  the 


1  Meece  v.  Commonwealtli,  78  Ky. 
586  (1880). 

2  Dover  v.  State,  75  Ala.  40  (1888)  ; 
Storey  v.  State,  71  Ala.  329  (1882); 
Kendall  v.  State,  05  Ala.  492  (1880) ; 
Murphy  i'.  State,  45  Ala.  32  (1871)  ; 
Jolinson  V.  State,  17  Ala.  618  (1850)  ; 
Cobia  V.  State,  16  Ala.  781  (1849)  ; 
Ford  V.  State,  34  Ark.  649  (1879) ; 
Neville  r.  State,  26  Ark.  614  (1871)  ; 
Trammell  v.  State,  26  Ark.  534 
(1871)  ;  Allen  v.  State,  26  Ark.  333 
(1870)  ;  Tiiompson  r.  State,  26  Ark. 
323  (1870);  People  c  Campbell,  40 
Cal.  129  (1870);  People  ;.'.  Marquis, 
15  Cal.  38  (1860)  ;  State  v.  Dowd,  19 
Conn.  388  (1849);  State  v.  Moran,  7 
Iowa,  236  (^858)  ;  State  v.  Huber,  8 
Kan.  447  (1871)  ;  Ford  (.-.  State,  12 
Md.  514  (1858);  TuUy  r.  People,  6 
Mich.  273  (1859) ;  State  v.  Upton,  20 
Mo.  397.  (1855)  ;  Parrish  v.  State,  18 
Neb.  405  (1885)  ;  s.c.  7  Cr.  L.  Mag. 
524;  25  N.  W.  Kep.  573;  Slate  v. 
Hover,  10  Nev.  388  (1875);  .s.c.  21 
Am.  Rep.  745 ;  Parks  v.  State,  3  Ohio 
St.  101  (1853)  ;  Dick  v.  State,  3  Ohio 
St.  89  (1853);   McPherson   v.   State, 


9  Yerg.  (Tenn.)  279  (1836)  ;  Slaugh- 
ter r.  State,  24  Tex.  410  (1859)  ;  Arm- 
stead  V.  State,  22  Tex.  App.  51  (1887)  ; 
s.c.  2  S.  W.  Rep.  627;  Dubose  v. 
State,  13  Tex.  App. 418  (1883)  ;  Krebs 
V.  State,  3  Tex.  App.  348  (1878)  ;  Col- 
bath  r.  State,  2  Tex.  App.  391  (1878). 
See  Dover  v.  State,  75  Ala.  40  (1883) ; 
McGuffie  V.  State,  17  Ga.  497  (1855)  ; 
State  V.  Potter,  16  Kan.  80  (1876); 
Commonwealth  v.  Hert}',  109  Mass. 
348  (1872);  State  v.  Ryan,  13  Minn. 
370  (1868).  Compare  People  v.  March, 
6  Cal.  543  (1856)  ;  Revel  r.  State,  26 
Ga.  275  (1858);  Kennedy  v.  State,  6 
Ind.  485  (1855)  ;  State  v.  Weese,  53 
Iowa,  92  (1880);  s.c  4  N.  W.  Rep. 
827;  Rilansky  v.  vState,  3  Minn.  427 
(1859)  ;  Territory  r.  Yarberry,  2  New 
Mex.  391  (1883);  People  v.  Rugg, 
98  N.  Y.  537  (1885)  ;  Buster  v.  State, 
42  Tex.  315  (1875);  Leschi  r.  Terri- 
tory, 1  Wash.  Tr.  23  (1857). 

3  Kendall  v.  State,  65  Ala.  492 
(1880). 

*  Morman  v.  State,  24  Miss  54 
(1852). 

6  16  Kan.  80  (1878). 


592  HOMICIDE.  [chap.  XXVII. 

defendant  guilty,  as  charged,"  and  it  was  held  not  ta  be  error 
for  the  court,  after  being  informed  by  the  jury  that  they 
intended  to  find  the  defendant  guilty  of  murder  in  the  sec- 
ond degree,  to  allow  the  verdict,  with  the  consent  of  the  jury, 
to  be  amended  so  as  to  read  as  follows:  "We,  the  jury,  find 
the  defendant  guilty  of  murder  in  the  second  degree,  as 
charg-ed  in  the  information." 

Sec.  545. —  Same — Assessing  the  piiiiislinieiit.  —  Where 
the  law  prescribes  that  the  jury,  where  they  return  a  verdict 
of  conviction  of  any  grade  of  homicide,  shall  assess  the  pun- 
ishment therefor  in  the  verdict,  it  is  imperative  that  the  ver- 
dict shall,  clearly  and  specifically,  and  without  implication  or 
inference,  specify  the  punishment  assessed  by  the  jury.^  Thus 
it  has  been  said  that  in  a  murder  case,  a  verdict,  "  Guilty  of 
capital  punishment,"  cannot  serve  as  a  foundation  for  sen- 
tence of  death,  because  the  meaning  —  whether  guilty  with 
capital  punishment  or  without  —  is  ambiguous.^ 

Under  the  Mississippi  statute  ^  a  jury  in  the  trial  of  an 
indictment  for  a  capital  crime  must  be  informed  that  if  they 
find  the  defendant  guilty,  and  do  not  declare  in  their  verdict 
whether  his  punishment  shall  be  death  or  imprisonment  for 
life,  the  court  will  pronounce  the  sentence  of  death,  or  their 
verdict  will  be  set  aside."^ 

Sec.  540.  Same  —  Constitutionality  of  statute.  —  The 
Iowa  Code,^  providing  that  the  jury,  on  a  trial  under  an 
indictment  for  murder  in  the  first  degree,  must  designate,  in 
a  verdict  of  guilty,  whether  the  accused  shall  be  punished 
by  death  or  imprisonment  for  life  at  hard  labor,  has  been  held 
not  to  be  unconstitutional  and  void  as  trenching  upon  the 
judicial  powers,  which  by  the  Iowa  Constitution*^  are  vested  in 
the  district  and  other  courts.*" 

Sec.  547.  Specifically  acquitting  of  higher  or  lower 
degree.  —  Upon  the  trial  of  an  indictment  for  any  grade  of 

1  Soe  Veatch  v.  State,  60  Ind.  201  3  Acts  1875,  p.  79. 

(1878) ;  State   v.  Foster,  36  La.  An.  *  AValton   v.    State,   57    Miss.    533 

857  (1884)  ;  State  v.  Ross,  32  La.  An.  (1870). 

854  (1880) ;  Walton  r.  State,  57  Miss.  ^  McLain's  Code,  1886,  p.  972. 

633   (1879);  Doran  v.   State,  7   Tex.  c  Art.  5,  §§  1,  5. 

App.  385  (1880).  "  State   v.  Hockett,  70   Iowa,  442 

^  State  t;.  Foster,  3G   La.  An.  857  (1886);   s.c.  9  Cr.  L.   Mag.  208;  30 

(1884).  N.  W.  Hep.  742. 


SEC.  549.]  THE    VERDICT.  593 

homicide  a  verdict  convictinof  the  defendant  of  a  lower  srrade 
may  be  sufficient  without  specifically  acquitting  of  the  higher 
degree  ;  for  a  verdict  of  guilty  of  any  degree  or  grade  of 
homicide  is  always  equivalent  of  an  express  acquittal  of  all 
higher  grades  or  degrees  of  that  offence.^  But  where  the 
verdict  does  specify  an  acquittal  of  the  higher  grade,  together 
with  a  conviction  of  a  lower  one,  it  will  not  be  bad  on  that 
account,  if  its  terms,  considered  altogether,  conclusively 
import  a  conviction  for  such  lower  offence.  Thus  in  State  v. 
]5owen,2  on  the  trial  of  an  information  for  murder  in  the 
second  degree,  the  vei'dict  was,  '^  We,  the  jury,  find  the  de- 
fendant not  guilty  in  manner  and  form  as  charged  in  the 
information,  but  do  not  find  him  guilty  of  manslaughter  in 
the  second  degree  ;  "  and  the  court  held  that  all  the  parts  of 
the  verdict  should  be  considered  in  determining  its  effect, 
and  that,  so  considered,  it  was  evident  that  the  jury  only 
intended  to  acquit  of  the  major  crime  in  terms  charged,  to 
wit,  that  of  murder  in  the  second  degree,  and  did  not  intend 
to  acquit  of  the  lesser  offences,  the  different  degrees  of  man- 
slaughter included  therein. 

Sec.  548.  Naming-  the  defendant.  —  Where  the  indict- 
ment is  against  only  one  person,  a  verdict  finding  the  defend- 
ant guilty  without  naming  him  is  usually  good.-^ 

Sec.  549.  Specifyingr  the  count  sustained. —  While  a 
verdict  of  guilty  rendered  upon  the  trial  of  an  indictment 
which  contains  several  counts  should  specify  the  count  upon 
which  it  is  rendered,  where  the  homicide  is  alleged  to  have 
])een  committed  in  different  waj's  or  under  different  circum- 
stances, yet  \\'here  all  the  counts  are  the  same  as  to.  the  man- 
ner of  death,  and  to  all  of  the  circumstances  surrounding  it, 
except  as  to  the  weapon  or  instrument  used,  the  verdict  need 
not  specify  upon  which  count  the  defendant  is  found  guilty.'* 

1  AVeigliorst  v.    State,    7    Md.   442  (1858).     See  State  v.  Conley,  39  Me. 

(1855);  State  v.  Lessinji,  Ifi  Minn.  75  78  (1854);  State  v.  Yancey,  3  Brev. 

(1870);    Brooks   v.  State,   3    Iliimpli.  (S.  C.)  L   142  (1813).     Compare  Peo- 

(Tenn.)  25  (1842).      C'-w/""f' State  r.  pie    v.    Boggs,   20    Cal.   433    (1862); 

Flannigan,  6  Md.  Ifi7  (1854)  ;  Casey  State  v.  Bradley,  0  Ricli.   (S.  C.)   L. 

r.   State,  20    Neb.  138   (188(i)  ;  s.r.  1)  168  (1855). 

Cr.  L.  Mag.  597;  29  N.  W.  Kep.  264.  ^  Jackson    r.    State,    74    Ala.    26 

-  16  Kan.  475  (1876).  (1883);    Kilgore   v.  State,  74    Ala.    1 

s  Martin  v.  State,  25  Ga.  494  (1883);  Browu  r.  State,  105  Ind.  386 
-  Q 


594  HOMICIDE.  [chap.  XXVII. 

Sec.  550.  Recommendation  of  mercy.  —  While  it  is 
always  proper  for  the  jury  convicting  a  person  of  any  high 
grade  of  homicide  to  incorporate  in  their  verdict  a  recom- 
mendation that  the  mercy  of  the  court  be  extended  to  the 
prisoner,  where  the  court  has  a  discretion  in  imposing  the 
punishment,  yet  such  a  request  or  recommendation  for  mercy 
towards  the  convict  is  always  addressed  solely  to  the  discre- 
tion of  the  trial  court;  and  it  is,  therefore,  not  a  necessary 
part  of  the  record,  and  the  court  may  order  the  verdict 
recorded  without  it ;  ^  and  it  may  be  disregarded  in  assigning 
the  punishment,  or  pronouncing  the  sentence.^ 

Sec.  551.    Errors  in  spelling  and  bad  grammar.  —  As  a 

general  thing  incorrect  orthography  or  ungrannnatieal  lan- 
guage will  not  vitiate  a  verdict  in  a  homicide  case ;  ^  but  it  is 
a  sound  rule  that  the  sufficiency  of  a  verdict  depends  to  a 
large  degree  upon  its  intelligibility  and  the  clearness  with 
which  it  shows  the  intention  of  the  jury,  and  their  decision 
conveys  their  mind  to  the  court ;  and  errors  in  spelling  which 
render  it  unintelligible,  or  its  meaning  doubtful,  will  be.  suffi- 
cient to  invalidate  it.  Thus  a  verdict  in  a  murder  case  find- 
ing the  defendant  guilty  of  murder  in  the  "  fist "  degree  has 
been  held  to  be  insufficient  and  illegal.*  In  this  case  the 
rules  governing  verdicts  in  murder  cases  were  elaborately 
discussed,  and  the  court  held  that  the  words  "first"  and 
"fist"  were  well-known  and  commonly  used  words,  and  for 
this  reason  the  one  could  not  be  substituted  for  the  other  or 
construed  to  mean  the  other,  because  the  word  "  fist,"  used 
in  the  verdict,  did  not  have  the  sound  of  the  word  "  first," 
which  should  have  been  used,  and  for  that  reason  the  ques- 
tion of  idem  sonans  was  eliminated  from  the  case.^  But  this 
decision  has  been  severely  criticised,  and  its  wisdom  or  just- 
ness is  seriously  doubted.^ 

(1885)  ;  s.c.  5  N.  E.  Kep.  000  ;  "Don-  3  Walker  v.  State,  13  Tex.  App.  618 

nelly  V.  State,  20  N.  J.  L.  (2  Dutcli.)  (1883)  ;  post,  §  552,  n.  6. 

403,  001  (1857).  *  Wooldridge  v.  State,  13  Tex.  App. 

1  People  v.  Lee,  17  Cal.  70  (1800).  443   (1883);   s.c.  44   Am.   Rep.   708; 

2  See  Ilackett  v.  Peoi)le,  8  Colo.  300  10  Cent.  L.  J.  314. 

(1885) ;  s.c.  8  Pac.  Rep.  574  ;  Walston  "  See  Walker  v.  State,  13  Tex.  App. 

r.  State,  54  Ga.  242  (1875)  ;  Emsoii  v.  018  (1883) ;  s.c.  44  Am.  Rep.  710,  now. 
State,  0  I5axt.  (Tenn.)  431  {lSi:'j).  «  See  27   Alh.  L.  J.  341,  381,  422; 

10  Cent.  L.  .7.  321,  301,  378,  415,  410. 


SEC.  552.]  THE   VERDICT.  595 

But  mere  misspelled  words  which  render  the  meaning  of 
the  verdict  none  the  less  clear  or  certain,  should  not  be 
allowed  to  vitiate  it.^  Thus  a  verdict  reading  "  wee  the  jurors 
finde  the  defendant  gilty  of  mrder  in  the  tirst  degree,  and 
assess  his  confinement  in  the  penetentiary  for  life,"  was  held 
to  be  sufficiently  certain  in  Walker  v.  State,^  although  the 
"u"  was  omitted  from  "murder"  and  "punishment  at"  was 
omitted  from  before  the  word  "  confinement." 

It  is  said  in  Krebs  v.  State,^  that  a  verdict  declaring  that 
"We  the  jurors  find  the  defendant  guilty  and  sess  his  punish- 
ment deth,"  however  obnoxious  in  spelling  and  style,  is  an 
intelligible  verdict  in  a  murder  case ;  but  it  will  not  support 
a  judgment,  inasmuch  as  it  fails  to  show  of  what  degree  of 
murder  the  defendant  is  found  guilty.  And  it  is  said  in 
State  V.  Ross,^  that  where  the  law  did  not  require  the  verdict 
in  a  capital  case  to  be  in  writing,  a  verdict  written  "  gulty 
withoit  capitel  parnish,"  but  distinctly  read  by  the  clerk, 
"guilty  without  capital  punishment,"  was  valid. 

Sec.  552.  Same  —  Idem  sonans.  —  It  is  thought  that  the 
doctrine  of  ideya  sonans  applies  to  and  governs  verdicts  in  homi- 
cide cases  in  tlie  same  manner  and  to  the  same  extent  that  it 
does  in  other  matters.^  Where  the  words  are  idejn  sonans 
the  verdict  must  be  sustained,  notwithstanding  the  bad  spell- 
ing of  the  word  in  the  verdict,  for  it  is  well  settled  that  bad 
spelling  and  poor  grammar  will  not  vitiate  a  verdict.*^ 

Applying  the  doctrine  of  idern  sonans,  the  rule  is  that  if 
the  words  may  be  sounded  alike  without  doing  violence  to 
the  power  of  the  letters  found  in  the  variant  orthography, 
then  the  words  are  idem  sonans,  and  the  variance  is  immate- 


1  State   V.   Ross,   32   La.    An.   854  note ;  Taylor  v.  State,  5  Tex.  App.  5G9 

(1880)  ;  Walker  v.  State,  1.3  Tex.  App.  (1879)  ;  Williams  i-.  State,  5  Tex.  App. 
618  (1883);  s.c.  44  Am.  Rep.  716,  22Q  (1879);  Haney  v.  State,  2  Tex. 
note;  Krebs  i-.  State,  3  Tex.  App.  348  App.  504  (1877);  Huifman  v.  Com- 
(1878).  monwealth,  6  Rand.  (Va.)  685  (1828). 

2  13  Tex.  App.  618  (1883)  ;  s.c.  44         «  See  Koontz  v.  State,  41  Tex.  570 
Am.  Rep.  716,  note.  (1874)  ;  Walker  v.  State,  13  Tex.  App. 

3  3  Te.x.  App.  .348  (1878).  618  (1883);  s.c.  44  Am.  Rep.  716, 
*  32  La.  An.  854  (1880).  note;  McMillan  v.  State,  7  Tex.  App. 
5  State  V.  Smith,  33  La.  An.  1414  100   (1880)  ;    Curry  v.  State,  7  Tex. 

(1881)  ;  Walker  r.  State,  13  Tex.  App.  App.  91  (1880);  Taylor  v.  State,  5 
618   (188.3);   s.c.  44   Am.   Rep.   716,  Tex.  App.  569  (1879). 


596  HOMICIDE.  [chap.  XXVII. 

rial.^  Thus  it  has  iDeen  held  that  a  verdict  finding  the  de- 
fendant guilty  of  "mrder"  is  valid  because  the  misspelled 
word  "mrder,"  as  used  in  the  verdict,  is  idem  sonans  with 
the  word  "  murder,"  as  properly  spelled,  and  the  variance  in 
the  orthography  of  the  two  is  not  material,  and  their  sound  is 
so  nearly  tthe  same  when  pronounced  that  there  is  in  fact 
scarcel}^  any  difference.  They  are  not  different  words  cor- 
rectly spelled,  and  not  sounding  alike,  but  they  are,  in  fact, 
the  same  word  differently  spelled,  sounding  alike.^  In  Krebs 
V.  State,'^  where  the  jury  found  the  defendant  guilty  of  murder 
and  wrote  "  sess  his  punishment  deth  "  for  "  assess  his  pun- 
ishment death,"  the  verdict  was  held  to  be  valid.  And  in 
Koontz  V.  State  *  a  verdict  was  held  valid  which  found  the 
defendant  "  gilty "  and  assessed  his  punishment  at  a  "  turm 
of  too  years." 

Sec.  553.  Polling-  the  jury.  —  Where,  on  the  trial  of  an 
indictment  for  homicide,  a  verdict  is  announced,  either  the 
prosecution  or  the  defence  may  require  the  jury  to  be  polled. 
Where  this  is  done  it  is  the  duty  of  each  juror  to  announce 
his  individual  decision  upon  the  question  of  defendant's  guilt, 
and  if  it  be  that  he  is  guilty,  the  degree  of  which  he  decides 
him  to  be  guilty.^ 

If,  when  the  jury  is  polled  in  a  trial  for  murder,  a  juror 
says  he  thinks  the  prisoner  is  only  guilty  of  manslaughter, 
but  assents  to  a  verdict  for  the  sake  of  an  agreement,  a  ver- 
dict of  guilty  is  not  a  proper  verdict,  and  the  judgment  en- 
tered thereon  against  the  prisoner's  objection  will  be  reversed.^ 
And  in  a  case  where  a  verdict  of  guilty  of  murder  in  the 
second  degree,  having  been  rendered  upon  an  indictment  for 
murder  in  the  first  degree,  and  it  afterwards  appearing  that 
one  of  the  jurors  assented  to  it  as  a  compromise,  and  he  re- 
fusing in  open  court  to  assent  to  it,  according  to  its  legal 

1  Ward  V.  State,  28  Ala.  5.3  (1856)  ;  «  o  Tex.  App.  348  (1878). 

Grosliani     v.     Walker,     10    Ala.     370  *  41  Tex.  570  (1874). 

(184f>);  Galian  r.   People,  58  111.  100  &  See    Williams    i:   State,   00   Md. 

(1871)  ;  Walker  -•.  State,  13  Tex.  App.  402  (1883)  ;  State  v.  Ostrander,  30  Mo. 

»;i8    (1883);    s.c.  44    Am.    Rep.    710,  13  (1860) ;  Kotlibaucr  c.  State,  22  Wis. 

note ;  Henry  v.  State,  7  Tex.  App  388  468  (1808). 

(1880).        '  ''  Uathbauer  v.  State,  22  Wis.  468 

•^  Walker  r.  State,  13  Tex.  .App.  618  (1868). 
(1883)  ;  .s.c.  44  Am.  Hep.  716,  note. 


SEC.  553.]  THE   VERDICT.  597 

effect,  as  a  verdict  of  not  guilty  in  the  first  degree,  the  court 
held  that  there  was  no  verdict,  and  that  there  was  a  mistrial ; 
but  this  decision  was  overruled  on  appeal.^ 

1  State  1'.  Ostrander,  30  Mo.  13  (18G0). 


INDEX. 


Abortion, 

alleging  crime  in  indictment  for,  281,  282. 
killing,  in  attempting  to  produce,  57-60,  168. 
causing  pregnant  woman  to  take  poison,  58. 

supplying  drugs  without  causing  them  to  be  taken,  59,  60. 
in  attempting  to  kill  a  child  by  use  of  drugs  or  instruments,  168. 
manslaughter  when,  168. 
murder  when,  57,  58,  168. 
Accomplice, 

declarations  of,  478.     See  Evidence. 
instructions  as  to  evidence  of,  588. 
testimony  of,  557-559.     See  Evidence. 
Act  or  omission  causing-  death, 

liability  for,  37,  38. 
Acts  of  kindness, 

of  defendant  towards  deceased,  489. 
Administering-  medicine, 

killing  by,  misadventure,  26. 
Adulterer, 

killing  by,  in  resisting  husband's  attack,  manslaughter,  159,  160. 
killing  of,  when  taken  in  the  act,  manslaughter,  12. 
Adultery, 

with  slayer's  wife  sufficient  provocation  to  reduce  killing  to  man- 
slaughter, 154. 
AfRdavit, 

for  continuance,  as  evidence  against  defendant,  509.    See  Evidence. 
Agent,  causing  death  through, 
innocent  agent,  5. 
irresponsible  agent,  2,  5. 
substituted  agent,  4. 
Alias  dictus, 

proving,  542.     See  Evidence. 
Alihi, 

instructions  as  to,  588.     See  Instructions. 
proving,  560,  561,  572-574,     See  Evidence. 
Alien  enemy, 

not  in  arms,  killing  of,  murder,  66. 

599 


GOO  homicide: 

Anarchists, 

case  of,  572. 

malice  presumed  from  manufacture  of  dynamite  bombs,  78,  79. 

rule  in  Colorado  and  Louisiana,  79,  80. 
Anarchistic  principles, 

proof  of,  190.     See  Evidence. 
Arraigiiinent  and  plea, 

manner  of  reading  of  indictment  on,  353. 

necessity  for,  351-353. 

pleading  former  jeopardy,  359-361. 

what  is  a  sufficient  plea  of,  3(J1. 
pleading  guilty,  358. 

ascertaining  degree,  358. 

retraction  of  plea,  358,  359. 
pleading  nolo  contendere,  358. 
pleading  not  guilty,  357. 

duty  of  court,  357,  358. 
re-arraignment,  353. 
sufficiency  of,  351-353. 
withdrawal  of  plea,  354-357. 

for  purpose  of  motion,  354. 

hearing  of  evidence  on  application  for,  357. 

of  guilty,  when  permitted,  354-357. 

statutory  provisions,  357. 

Arrest, 

illegal,  not  justify  killing,  92,  93,  94. 

killing  in  making,  215,  216. 

killing  in  resisting  by  force,  93,  21G. 

resistance  with  reasonable  force,  93. 
Arrest  and  hearing-.     See  Prelimixaky  Examination. 
Artifice  and  deception, 

in  procuring  confession,  effect  of,  554. 
Assanlt, 

killing  in  resisting,  is  murder  when,  13. 

with  deadly  weapon,  203. 

question  of  right  of  self-defence,  203. 

Avarice, 

as  a  motive  to  crime,  515-517.     See  Evidence. 
Bad  grammar, 

effect  on  verdict,  594,  595.     Sec  Vkudict. 
Bail, 

after  conviction,  328,  329. 

American  doctrine  of,  317-319. 
Texas  doctrine,  319. 

burden  on  defendant  to  show  guilt  not  evident,  325,  326. 

causes  for,  322. 


INDEX.  601 

Bail — Continued. 

causes  for —  Continued. 

sickness  and  disease,  322-324. 
common  law  doctrine  of,  31(5,  317. 
for  murder  in  first  degree  when,  320. 

forfeiting  and  threatening  to  resist  not  adequate  provocation  to  re- 
duce liomicide  to  manslaughter,  153. 
granting  and  refusing,  319,  320,  329,  330. 

granting  after  indictment,  322. 
jurisdiction  to  admit  to,  321. 
on  failure  of  jury  to  agi-ee,  327,  328. 
procedure  on,  329,  330. 

proof  of  guilt  justifies  refusal  when,  324,  325. 
review  of  refusal,  330. 
what  inquired  into  on  admitting  to,  324. 
when  refused,  319,  320. 

Banter, 

provocation  justifying  homicide,  151. 
Bludgeon, 

charging  killing  with,  293. 
Bodily  harm, 

intent  to  infiict,  29. 
Books, 

medical  and  scientific,  as  evidence,  530,  .531.     See  Evidence. 
Business  and  social  relations, 

proof  of,  502.     See  Evidenck. 
Caption  of  an  indictment.    See  Indictment  and  Information. 
Carelessness, 

supplies  place  of  criminal  interest,  96,  97. 
Chance  medley, 

homicide  by,  defined,  24. 
Character  and  disposition  of  defendant, 

as  to,  483.     See  Evidence. 
Child, 

inciting  to  murder  another,  34. 
Clergyman, 

confession  to,  admissibility  in  evidence,  554. 
Co-conspirators, 

indictment  of,  as  accessories,  30,  123,  124. 

Co-defendants, 

acts  and  declarations, 

evidence  of,  493.     See  Evidence. 

Committing  magistrate, 

examination  before.     See  Preliminauy  Examination. 


602  HOMICIDE. 

Commitment, 

warrant  for,  on  preliminary  examination,  269. 
Communistic  principles, 

proof  of,  490.     See  Evidence. 
Confederates, 

acts,  declarations,  etc.,  of,  490. 

after  the  homicide,  493,  494. 

before  the  homicide,  490-492. 
Confessions.     See  Evidence. 
as  to,  543-556. 
during  examination,  555. 
extrajudicial  confessions,  545  et  seq. 
grounds  on  which  received,  544. 
inducement  to,  by  pei'son  in  authority,  549-552. 

a  chaplain  of  the  prison,  551. 

a  constable  in  charge,  551. 

a  person  arresting,  551. 

a  jailer,  551. 

a  magistrate  acting  in  the  case,  551. 

a  master  or  mistress  of  prisoner,  551. 

a  person  having  authority  over  tlie  prosecution,  551. 

a  person  having  judicial  authority,  551. 

a  private  person  in  presence  of  one  in  authority,  552. 

a  woman  with  whom  a  female  prisoner  is  left  by  officer,  551,  552. 

an  officer  in  charge,  551. 

the  prosecutor,  551,  552. 

the  prosecutor's  attorney,  552. 
the  prosecutor's  mother-in-law,  552. 
the  prosecutor's  wife,  552. 
inferred  when,  555,  556. 
judicial  confessions,  545  et  seq. 
made  through  fear  of  mob  violence,  553,  554. 
made  while  under  arrest,  552. 
nuist  be  free  and  voluntary,  547,  549,  550. 
must  be  taken  as  a  whole,  556. 
nature  and  effect  of,  542,  547. 
obtained  by  artifice  or  deception,  554. 
obtained  by  questioning,  555. 
obtained  during  examination,  55.5. 
procured  by  artifice  or  deception,  554. 
retraction  does  not  affect,  545. 
to  clergyman,  554. 
value  of,  546,  .547. 

whole  confession  taken  together,  556. 
Consent  of  killed, 

does  not  prevent  tlio  offence  being  murdor,  00.  61. 
Conspiracy.     See  Conspiuatoiw  and  Conspikacy. 


INDEX. 


603 


Conspirators  and  conspiracy, 

act  of  one  act  of  all  iu  felony,  126,  127,  129,  130. 

otherwise  in  misdemeanor,  128. 
acts,  declarations,  etc.,  of  co-couspirators,  490. 
after  the  homicide,  493,  494. 
before  the  homicide,  490-492. 
concert  of  action,  130. 
death  the  probable  result,  all  bound,  130. 
killing,  in  executing  felonious  design,  murder,  129. 

in  carrying  off  a  vessel,  95. 
liability  of  all  for  acts  of  one,  39. 
person  to  be  killed  need  not  be  designated,  131. 

preparer  of  instrumentalities  need  not  know  who  to  use  them,  130, 131. 
principal  in  first  degree  need  not  be  known,  131. 
purpose  of  conspiracy  must  be  vinlawf  ul,  132. 
the  Anarchists'  Case,  131-133. 

tdtimate  object  to  be  attained  need  not  be  the  same  in  all,  132. 
where  means  agreed  upon,  131,  132. 
where  means  not  specifically  agreed  upon,  131. 
where  killing  unconnected  with  design,  40. 
party  killing  alone  responsible,  40. 
Constitutionality, 

of  statute  providing  for  assessing  punishment  in  verdict,  592. 
Construction  of  statutes, 

prescribing  degrees  of  murder,  104-106. 
Continuances, 

affidavit  for  as  evidence  on  trial,  509. 
Continuing  offences, 

California,  etc.,  doctrine,  44. 
common  law  doctrine,  45-47. 
English  doctrine,  48. 
jurisdiction  over  accused,  44,  45. 
liability  for,  44. 
New  Jersey  doctrine,  44. 
Convict, 

escaped,  shooting  officer  seeking  to  recapture,  murder  ;  93. 
Conviction  of  accessory, 

before  principal,  136. 
Coroner's  inquest, 

testimony  at,  as  evidence  on  trial,  508. 
Corpus  delicti, 

burden  of  proof  of,  as  to,  535.     See  Evidence. 
Counsel, 

appointment  of,  338-340. 
argument  of  counsel, 

for  defendant,  347,  348. 


604  HOMICIDE. 

Counsel  —  Continued. 

argument  of  counsel  —  Continued. 

for  prosecution,  340,  341. 

limiting  time  of,  348-350. 
for  defence,  337. 

common  law  doctrine,  337,  338. 

American  doctrine,  338. 

Canadian  doctrine,  338. 
for  prosecution,  330. 

argument  of,  340,  341. 
misconduct  of,  during  trial,  341-343,  412. 

abusive  language,  exciting  prejudice,  343,  344. 

commenting  on  failure  to  testify,  345,  346. 

discretion  of  court  in  granting  new  trial  for,  346,  347. 

improper  remarks,  342,  343. 

misstatement  of  facts,  344,  345. 
assumptions,  345. 
Cries  of  bystanders, 

as  evidence,  497,  498.     See  Evidence. 
Criminal  intimacy 

with  a  female  as  motive  to  a  crime,  517,  518. 
Deadly  weapon, 

assault  witli,  raises  right  of  self-defence,  209. 
malice  presumed  from  purchase  and  carrying  of,  466. 
malice  presumed  from  use  of,  27,  28,  80. 

in  correction  of  child,  27,  28. 
mere  words  will  not  justify  use  of,  83. 
purchasiiig  and  carrying  shows  malice,  466. 
what  is,  81. 

a  question  for  the  court,  81. 

the  intention  of  tlie  party,  82. 
Death, 

from  subsequently  contracted  disease  relieves,  39. 
produced  by  other  cause,  2,  28. 
Defences  to  homicide, 

homicide  because  of  reward  offered  for  death  of  deceased,  219. 
homicide  from  compulsion,  225. 

by  accident  and  mistake,  225,  227. 

in  war,  225. 

while  insane,  227-230. 
moral  insanity,  230. 
uncontrollable  impulse,  228. 
homicide  from  necessity,  222-225. 

the  Mignonnette  Case,  223,  224. 
homicide  in  defence  of  a  woman's  chastity,  219-221. 
homicide  in  making  arrest,  215,  216. 

homicide  in  preventing  forcible  breaking  and  entering  dwelling,  218. 
homicide  in  resisting  arrest,  21G,  218. 


INDEX.  COo 

Defences  to  homicide—  Continued. 

homicide  in  resisting  arrest  —  Continued. 

ill  resisting  unlawful  arrest,  217. 
homicide  in  resisting  rescue,  21(). 
homicide  to  prevent  a  crime,  172-215. 

in  defence  of  another,  185-187,  207,  208. 
wiien  right  exists,  185,  186. 

to  prevent  a  felony,  185,  186,  187. 
to  protect  life  or  limb,  185. 
in  defence  of  property,  208. 

killing  in  repelling  trespass,  when  a  defence,  213. 
of  the  habitation,  208-212. 
of  other  property,  212-215. 
setting  spring-guns,  214,  215. 
Alabama  doctrine,  2-1. 
Connecticut  doctrine,  214,  215. 
in  self-defence,  172. 

assault  with  deadly  weapon  raises  right  of,  203. 
duty  to  retreat,  08,  203,  205,  206. 
Indiana  doctrine,  205,  206. 
Ohio  doctrine,  206. 

where  assailed  in  own  dwelling,  203-205, 
false  statement  as  to  condition  of  weapon  not  prevent  set- 
ting up,  178. 
killing  must  be  last  resort.  203. 

defendant  must  be  without  fault,  201.  202. 
duty  to  retreat,  198,  203,  205,  306. 

where  assaulted  in  his  own  dwelling,  203-205. 
reasonable  belief  in  imminent  danger,  187-189,  191. 
.apparent  design  of  the  assailant,  187. 
erroneous  idea  of  danger,  effect  of,  188. 
where  honest  and  non-negligent,  188. 
Pennsylvania  doctrine,  188,  189. 
grounds  for  belief  in  danger,  189-199. 
appearance,  189. 
assault, 

in  sudden  heat  of  passion,  198. 
merely  by  laying  hold  of,  197. 
where  battery  only  threatened,  196. 
where  defendant  or  another  endangered, 

196. 
with  deadly  weapon  by  unlawful  occupant 

of  defendant's  house,  197. 
with  stick, 

after  threats  to  kill,  197. 
on  public  highway,  197. 
conspiracy  to  take  life,  192,  193. 
former  acts  or  attempts,  192. 


60G  HOMICIDE. 

Defences  to  homicule  —  Continued. 

homicide  to  prevent  a  crime  —  Continued. 
in  self-defence —  Continued. 

killing  must  be  last  resort  —  Continued. 

reasonable  belief  in  imminent  danger —  Continued. 

grounds  for  belief  in  danger —  Continued. 

gestures  and  menaces  not,  193. 

unless    shows    intention    to    use    deadly 
weapon,  193. 

illustrations,  193,  194. 
overt  act  necessary,  189-191. 
possession  of  weapon  not,  194. 

unless  intention  to  use  it  is  manifested, 
194. 
illustrations,  194,  195. 
real  intention  of  deceased  immaterial, 
19.5. 
illustrations,  195,  196. 
threats  are  not,  190. 

illustrations,  190,  191. 
mere  words  not,  190,  202. 
where  the  defendant  the  aggressor,  192. 
question  for  jury,  187,  188. 
what  constitutes  imminent  danger,  187. 
when  fear  reasonable,  188. 
must  endeavor  to  avoid  difficulties,  198,  199. 

provoking  assault  prevents  setting  up,  199. 
notice  of  desire  to  withdraw  from  combat,  202. 
provocation,  what  is,  depends  upon  circumstances  of  each 

case,  200,  201. 
right  of,  190. 

not  created  by  mere  trespass  upon  property,  202. 
not  created  by  mere  words,  190,  202. 
not  created  or  raised  by  nuitual  combat,  202,  203. 
not  impaired  by  preparation  for  wrongful  act,  202. 
when  exists,  173,  185,  186,  190. 

assault  with  deadly  weapon  raises,  203. 
illustrations,  174-185. 
right  to  pursue  assailant,  206,  207. 
slayer  must  be  without  fault,  201. 

illustrations  of  the  doctrine,  201,  202. 
where  assaulted  with  deadly  weapon,  197,  203. 
homicide  to  prevent  the  escape  of  a  felon,  216. 
intoxication  as  a  defence. 

involuntary  intoxication,  251. 
voluntary  intoxication,  230-251. 

as  affecting  degree  of  offence,  242. 
as  affecting  intent,  241,  242,  243. 


INDEX.  60" 

Defences  to  homicide — Continued. 

intoxication  as  a  defence  —  Continued. 

voluntary  intoxication —  Continued. 
as  affecting  malice,  244,  245. 
as  att'ectiug  motive,  2o9,  240. 
as  an  aggravation  of  the  offence,  237. 
Illinois  doctrine,  237. 
Texas  doctrine,  238. 
as  disproving  criminal  intent,  246,  247. 
cannot  be  shown  to  I'educe  the  grade  of  crime,  244. 
delirium  tremens  resulting  from,  250. 
fixed  frenzy  produced  by,  249,  250. 
fortifying  by  intoxication,  245,  246. 
index  to  quality  of  act,  239,  240. 
insanity  resulting  from,  247,  248. 
delirium  tremens,  250. 
fixed  frenzy  from,  249,  250. 
predisposition  to  from,  249. 
irresistible  appetite,  233. 
mental  affection  must  be  permanent,  237. 
predisposition  to  insanity  from,  249. 
producing  temporary  insanity,  234. 
shown  as  affecting  physical  capabilities,  236. 
when  considered,  238-242. 

in  ascertaining  intent,  241,  243. 
in  determining  motive,  239,  240. 
index  to  quality  of  act,  239. 
killing  officer  dispersing  public  meeting,  218,  219. 

the  Anarchists'  Case,  218. 
killing  one  guilty  of  adultery  with  slayer's  wife,  221,  222. 
moral  insanity,  230. 
somnambidism  as  a  defence,  251-254. 

Degree  of  guilt  or  homicide, 

instruction  as  to,  576-.578.     See  Instructions. 
specifically  acquitting  of  higher  or  lower  degree,  592,  593. 
specifying, 

in  indictment,  287,  288. 

in  verdict,  591. 
Deliberation.     See  Deliberation  and  Cooling  TniE. 

definition  of,  72. 
Deliberation  and  cooling  time, 

adequate  cooling  time,  what  is,  69,  71,  72,  73. 

a  question  for  the  jury,  70. 

calm  and  deliberate  mind  shows,  72. 

determination  to  use  deadly  weapon  shows,  71. 

formed  design  shows,  72. 

inadequate  cooling  time,  what  is,  73. 


608  HOMICIDE. 

Deliberation  and  cooling-  time — Continued. 
adequate  cooling  time,  ■what  is  —  Continued, 

inadequate  cooling  time  —  Continued. 
illustrations,  73-75. 

no  specific  time  is,  70  et  seq. 

thought  and  contrivance  shows,  72. 

time  for  ordinary  man  to  cool,  70,  71,  73. 

other  discourse  intervening,  presumptive  of,  71. 

taking  up  and  pursuing  ordinary  business,  71. 
artifice  to  cover  crime,  72,  73. 
cooling  time  prevents  reduction  of  homicide  to  manslaughter,  145, 

146,  149. 
feigned  reconciliation,  76. 
if  there  is,  the  killing  is  murder,  69. 
inquiry  as  to  scope  and  object  of,  70. 
pursuit  on  quarrel,  84,  86,  88. 
scope  and  object  of,  inquiry  as  to,  70. 

seeking  revenge  the  next  day,  for  assault  on  accused's  son,  89. 
shown  by  threats,  85. 

sufficiency  of  time,  a  question  for  the  jury,  70. 
sufficient  time  for  a  reasonable  man  to  have  cooled,  70,  71,  73. 

South  Carolina  doctrine,  70. 
sufficient  deliberation,  what  is,  72.     See  ante,  adequate  cooling  time 
(this  title). 

evidence  of  a  calm  and  deliberate  mind,  72. 

formed  design,  72. 

thought,  contrivance,  etc.,  72. 
passion  after  intent  formed,  75. 
pretence  of  fighting,  75,  76. 
what  is,  69. 
Delirium  tremens, 

as  a  defence  to  homicide,  250.     See  Defences  to  Homicide. 
Deserters, 

killing  is  murder,  66.  » 

Desig-n  to  kill.     See  Murder,  Second  Degree. 

Disagreement  and  re-trial, 

as  to,  589. 

continuance,  589. 

discretion  of  trial  court,  589. 
Disease, 

inoculating  with,  death  by,  41. 

inoculating  with,  venereal,  41. 

that  would  have  killed,  will  not  relieve  from  felonious  homicide,  37. 
Drugs, 

administering  to  woman  to  produce  abortion,  168. 


INDEX.  609 

Duty, 

causing  death  by  omission  of,  2,  5. 
negligent  omission  of,  causing  death,  manslaughter,  68. 
wilful  omission  of,  causing  death,  murder,  08. 
Duty  to  retreat.     See  Defences  to  Homicide. 
as  to,  203,  205. 

when  assaulted  in  own  dwelling,  203-205. 
Dying"  clcclai-ation.     See  Evidence. 
Election, 

where  offence  charged  in  two  counts,  278. 
Erroneous  medical  ti*eatuient, 

will  not  relieve  from  liability  for  felonious  assault,  38. 
Errors  in  preliminary  examination, 

effect  of,  206. 
Errors  in  spelling, 

effect  on  verdict,  584.     See  Verdict. 
Escape, 

as  evidence  against  defendant,  470.     See  Evidence. 
in  arrest  for  misdemeanor  does  not  justify  killing,  11. 
rebutting  presumption  arising  from,  471. 
Evidence, 

accomplice,  testimony  of,  as  to,  557-559. 
acts, 

of  confederates  and  co-conspirators,  490. 
.    after  homicide,  493,  494. 
before  homicide,  490-492. 
revolutionary  organization,  492. 

adopting  writings  of  another,  492,  493. 
of  the  deceased,  433,  434. 
of  the  defendant,  435. 

after  the  homicide,  469. 

appearance  indicating  mental  condition,  468. 
conduct  indicating  mental  condition,  469. 
flight  or  escape,  470-472. 

evidence  of  refusal  to  flee,  etc.,  471. 
rebutting  presumption  arising  from,  471. 
inconsistent  with  declarations,  435. 
before  the  homicide,  465-469. 

inconsistent  with  declarations,  435. 
no  limitation  as  to  time  of  inquiry,  465. 
other  crimes  of  the  defendant,  467-469. 
remote  and  inconsistent,  admissible  when,  466. 
riotous  acts  at  different  place,  467. 
inconsistent  with  declarations,  435. 
of  third  parties, 

after  the  homicide,  496,  497. 

•      39 


610  HOMICIDE. 

Evidence  —  Continued. 
acts  —  Continued. 

of  third  parties —  Continued. 

before  the  homicide,  494,  495. 
cries  of  bystandei's,  497. 
against  a  person  as  accessory  in  poisoniug,  134,  135. 
alias  dictus,  proving,  542. 
alibi,  proving,  559,  560,  572-574. 
Anarchists'  Case,  the,  572. 
anarchistic  principles,  proof  of,  490. 
avarice  as  a  motive,  515-517. 
books  as  evidence,  530,  531. 
burden  of  proof  and  presumptions,  535. 

as  to  corpus  delicti,  535. 

as  to  malice,  535-537. 

as  to  insanity,  537,  538. 
character  and  disposition  of  defendant,  483. 

peacefulness  of  character,  483-485. 

negative  evidence,  485-487. 

reason  for  the  rule,  487-489. 

defendant's  acts  of  kindness  towards  deceased,  489. 
circumstantial  evidence,  504-507. 

possession  of  stolen  property,  568. 
co-conspirators,  acts,  declarations,  etc.,  of,  490. 

after  the  homicide,  493,  494. 

before  the  homicide,  490-492. 
co-defendants,  acts  and  declarations  of,  493. 

after  the  homicide,  493,  494. 
communistic  principles,  proof  of,  490. 
conduct  of  the  deceased,  433,  434. 
comparison 

of  handwriting,  505. 

of  tracks  and  footprints,  505-507. 

compelling  defendant  to  make,  506,  507. 
experiments  out  of  court,  507. 
compelling   defendant   to   make    imprint   of    foot   for   comparison. 

505-507. 
competent  evidence,  establishing  death  by,  568. 
competency  of,  418. 

and  weight,  instruction  as  to,  481. 

determining,  420. 
confederates,  acts,  declarations,  etc.,  of,  490. 

after  the  homicide,  493,  404. 

before  the  homicide,  400-192. 
confessions.     See  Confession. 

as  to,  479,  543. 

by  an  accomplice,  482,  483. 


INDEX.  611 

Evidence —  Continued. 

confessions  —  Continued, 
involuntary, 

confessions  made  under  menace  are,  479,  480. 
inadmissible  in  evidence,  479. 
knowledge  of  effect,  480,  481. 
must  be  taken  as  a  whole,  479. 
must  be  voluntary,  479. 
to  whom  made,  481. 

to  fellow-prisoner,  481,  482. 

on  assurance  that  one  criminal  can  not  testify  against 
another,  482. 
to  prosecuting  officer,  482. 
corpus  delicti, 
as  to,  539-541. 
burden  of  proof  as  to,  535. 
New  York  rule,  541,  542. 
corroboration  of  eyewitnesses  not  necessary,  564. 
cries  of  bystanders,  497,  498. 

criminal  intimacy  with  female  as  a  motive,  517,  518. 
declarations,  » 

of  a  confederate  or  co-conspirator,  490. 
after  homicide,  493,  494. 
before  homicide,  490-492. 
of  an  accomplice,  478,  479. 
of  deceased,  436-438. 
as  to  slayer,  439. 
dying  declarations,  450-455. 
admissibilitt/  of, 

partly  written  and  partly  oral,  450. 

stating  fact  and  expressing  opinion,  450,  451. 

test  of  admissibility,  448-450. 

belief  in  impending  death,  449. 
when  admissible,  440,  449. 
form  of,  455. 

Kansas  doctrine,  444-446. 

must  be  made  under  sense  of  impending  death,  441-443. 
partly  written  and  partly  parol,  450. 
reducing  declaration  to  writing,  4.52,  453. 

partly  written  and  partly  parol,  450,  451. 
scope  of  declarations,  446-448. 
stating  fact  or  expressing  opinion,  450,  451. 
time  between  declaration  and  death  immaterial,  443, 

444. 
time  of  declaration,  443,  444,  453-455. 
when  admissible,  440. 
not  made  in  extremis,  438,  439. 
to  show  physical  peculiarities,  437. 


612  HOMICIDE. 

Evidence  —  Continued. 

declarations  —  Continued. 
of  deceased  —  Continued. 
when  admissible,  437. 
when  res  gestcB,  436. 
of  defendant,  472-478, 

after  the  homicide,  475. 

proof  by  prosecution,  475,  476. 
proof  by  defence,  476-478. 
before  the  homicide,  472-474. 
writings  of  defendant,  474. 
to  kill  some  one  else,  474. 
of  third  persons,  494. 

made  after  the  homicide,  496,  497. 
made  before  the  homicide,  494,  495. 
made  in  the  presence  of  accused,  498. 
made  out  of  presence  of  accused,  498,  499. 
defendant's  guilt  upon  the  whole  evidence,  563-575. 
diagrams  in  evidence,  533. 
direct  evidence,  563. 

dying  declarations.     See  Declarations  of  Deceased  (this  title). 
establishing  facts  by  competent  evidence,  568. 
experiments,  admissibility  of,  529,  530. 
expert  and  opinion  evidence,  .523-525.     See  Experts. 
experts.     See  Experts. 

non-experts  as  witnesses,  527. 

skilled  workmen  as,  523,  .525. 

eyewitnesses  of  act  causing  death,  563. 

corroboration,  564. 
given  at  former  inquiries,  507. 
at  coroner's  inquest,  507,  508. 
at  former  trial,  509. 
at  preliminary  hearing,  508,  509. 
defendant's  affidavit  for  continuance,  509. 
hearsay  evidence,  531,  .532. 
ill-feeling,  proof  of  previous,  499. 
impeaching  evidence,  532,  533. 
incriminating  testimony,  420. 

insanity.     See  Ixsamtv  ;    Defences  to  Homicide. 
as  to,  560,  561. 
proof  of,  520-527. 

excessive  use  of  liquors  may  be  shown,  522.  , 

expert  and  opinion  evidence,  523-525. 

in  insanity  cases,  52.5,  526, 
evidence  proper  to  be  considered,  .521,  522. 
kinds  of  evidence  required,  520. 
non-experts,  testimony  of,  527-529. 


INDEX.  613 

Evidence  —  Continued. 
insanity — Continued. 
proof  of —  Continued. 

opinions  of  non-expert  witnesses,  526,  527. 
time  to  which  inquiry  limited,  522. 
jealousy  as  a  motive,  519. 
material  facts  charged,  proof  of,  571. 
medical  books  as  evidence,  530,  531. 
motive, 

avarice,  515-517- 

criminal  intimacy  with  a  female,  517,  518. 
immunity  from  prosecution,  510. 
improper  devotion  to  a  female,  517. 
jealousy,  519. 
marital  infidelity,  518. 

prevention  of  intimacy  by  deceased,  513,  514. 
promotion  of  plans  of  secret  organization,  514,  515. 
revenge,  519. 
showing,  510. 
non-experts  as  witnesses,  527. 
non-professional  witnesses  in  insanity  cases,  526. 
of  character,  483-489. 
of  character  of  the  deceased,  456. 
of  disposition  of  deceased,  456. 
of  habits  of  deceased,  456. 
of  other  crimes,  51 L 

when  admissible,  511,  512. 
of  threats, 

by  confederate  or  co-defendant,  490. 
after  the  homicide,  493,  494. 
before  the  homicide,  490-492. 
by  the  deceased,  426-428. 
foolhardy  threats,  429- 

when  the  defendant  the  aggressor,  428.  • 

when  uncommunicated,  428. 
by  the  defendant,  4G1-465. 

competent  to  show  malice,  401. 
conditional  threats,  463. 
need  not  be  made  to  any  person,  464- 
need  not  be  toward  any  particular  person,  462,  463. 
time  of  threats,  4(54,  465. 
to  kill  some  one  else,  474. 
where  against  a  specified  person,  463. 
by  secret  societies,  430. 
by  third  person,  429,  430,  494. 
after  homicide,  496,  497. 
before  homicide,  494,  495. 


614  HOMICIDE. 

Evidence  —  Continued. 
of  threats  —  Continued. 

communicated  threats,  430. 
overt  act  must  be  shown,  433. 
showing  premeditation,  432. 
uncommunicated  threats,  430,  431. 
as  corroborative  evidence,  431. 
opinion  evidence,  523-525. 
order  of  proof,  421. 

in  conspiracy  cases,  421,  422. 
proving  corpus  delicti,  421. 
physical  superiority  of  defendant,  483. 
premeditation  shown  by  threats,  432. 

presumptions  and  burden  of  proof,  535.     See  Burden  of   Proof 
(this  title). 

as  to  corpus  delicti,  535. 
previous  ill-feeling,  showing,  499. 

previous  relations  between  deceased  and  defendant,  499. 
business  and  social  relations,  502,  503. 
previous  ill-feeling  and  quarrelling,  499-501. 
proof  by  defence,  501,  502. 
proof  by  prosecution,  500,  501. 
when  two  jointly  indicted,  501. 
previous  quarrelling,  showing,  499. 
promotion    of   plans    of    secret    organization    as    a    motive,    514, 

515. 
proof  of  character,  disposition,  habits,  etc.,  of  deceased,  456. 
by  defence,  457—460. 

of  character  in  foreign  country,  459,  460. 
what  may  not  be  proved,  4G0. 
when  not  admissible,  460. 
where  defendant  the  aggressor,  460,  461. 
where  question  of  self-defence  left  open,  458. 
proof  as  tp  weapon,  503-505. 
proving, 

alias  dictus,  542. 
alibi,  550,  560,  572-574. 
deceased  an  officer  of  the  law,  509,  510. 
insanity,  560,  561. 
previous  quarrelling,  499. 
provocation,  435. 
self-defence,  559. 
venue,  542. 
provocation,  proof  of,  435. 
quarrelling,  proof  of  previous,  499. 
reasonable  doubt.     See  Reasonable  Doubt. 
doctrine  of,  543,  569. 


INDEX,  615 

Evidence  —  Continued. 
res  gestae, 

declarations  of  co-defendant  not,  when,  193. 

what  is,  434. 
revenge  may  be  shown  as  a  motive,  519,  520. 

revolutionary  organization,  proof  of  adoption  of  writings  of  others,  492. 
scientific  books  and  writings  as  evidence,  530,  531. 
self-defence,  proving,  559. 
skilled  workmen  as  experts,  525. 
socialistic  principles,  proof  of,  490. 
somnambulistic  condition,  proof  of,  490. 
sufficiency  of  evidence,  562. 
suicide  not  evidence  of  insanity,  51,  52. 

but  may  be  considered  by  the  jury,  51. 
testimony  at  former  inquiries,  507. 

at  coroner's  inquest,  507,  508. 

at  former  trial,  509. 

at  preliminary  hearing,  508,  509. 

defendant's  affidavit  for  continuatice,  509. 
things  in  evidence,  533. 
threat.     See  "  of  threats,"  supra. 
to  convict  of  aiding  and  abetting  suicide,  53. 
to  convict  on  giving  mortal  wound,  36. 
to  prove  corpus  delicli,  425,  426. 
to  support  indictment  charging  feloniously  placing  infant  in  perilous 

position,  69. 
tracks, 

coujpelling  defendant  to  make,  for  comparison,  506. 

experiments  with,  out  of  court,  .507. 
use  of  intoxicating  liquors,  proof  of,  489. 
venue,  proving,  542. 
view  of  premises  by  jury,  534,  535. 

weapon  with  wliich  homicide  committed,  as  evidence,  534. 
■weight  and  sufficiency  of, 

as  to,  538-563,  568. 

alias  dictus,  proving,  542. 

alibi,  559,  560. 

confessions,  543.     See  Confessions. 

corpus  delicti,  539-541. 

New  York  rule,  541,  542. 

doctrine  of  reasonable  doubt,  543. 

insanity,  proving,  560,  561. 

proving  alibi,  559,  560. 
insanity,  560,  561. 
self-defence,  5.59. 

reasonable  doubt,  doctrine  of,  543. 

self-defence,  proving,  559. 


616  HOMICIDE. 

Evidence  —  Continued. 

■weight  and  sufiEciency  of  —  Continued. 
sufficiency  of  evidence,  562. 
testimony  of  accomplice,  557-559. 
witnesses.     See  Witnesses. 

writings  of  others,  adoption  of,  by  revolutionary  organization,  292. 
Excuse, 

instruction  as  to,  579,  580.     See  Instruction. 
Experiments, 

admissibility  in  evidence,  529,  530.     See  Evidence. 
Expert  and  opinion  evidence.    See  Evidence. 

as  to,  523,  525. 
False  swearing-, 

procuring  conviction  and  execution  by,  not  homicide,  43. 
Fatal  blow, 

killed  by  another  after  mortal  wound,  35,  36. 

other  blows  will  not  relieve  from  responsibility,  35. 
Fears  of  a  covi  ard, 

not  justify  a  homicide,  17. 
Federal  court, 

jurisdiction  of, 

where  wound  and  death  occur  on  high  seas,  143,  261. 
where  wound  given  on  high  seas,  and  death  occui'S  on  shore,  143. 
Figure  of  speech, 

use  of,  in  instruction  to  jury,  586. 
Firearms, 

killing  in  unlawful  or  negligent  use  of,  involuntary  manslaughter,  1G2. 

using  in  repelling  arrest  with  naked  fists  manslaughter,  161. 
Flight, 

as  evidence  against  defendant,  470.     See  Evidence. 
Former  jeopardy, 

pleading,  3.59-361. 

what  a  sufficient  plea  of,  361. 
Fright, 

causing  death  by,  3. 
Gun, 

charging  killing  with,  292,  293. 
Handwriting, 

comparison  of,  505.     See  Evidence. 
Hearsay  evidence, 

admissibility  of,  .531,  532.     See  Evidence. 
High  seas, 

murder  on,  jurisdiction  over,  48,  143.     See  Federal  Court. 
Homicide, 

by  administering  medicine,  misadventure,  26. 


INDEX.  617 

Homicide  —  Continued. 

by  adiiiinistering  poison,  25. 

by  chance-medley,  what  is,  24. 

by  depriving  of  lood,  41,  42. 

by  driving  carriage  over  child,  25. 

by  or  in  I'oUowing  ordinary  occupation,  25. 

administering  medicine,  26. 

driving  carriage  over  child,  25. 

playing  at  lawful  sports,  26. 
Foster's  views,  26. 

riding  horse  over  child,  when,  25. 

throwing  timber  from  building  into  street,  25,  26. 
by  fright,  40,  41. 

by  giving  excessive  quantity  of  liquor,  2-4,  162. 
by  inciting  child  or  madman  to  murder,  34. 
by  inflicting  person  -with 

plague,  41. 

venereal  disease,  41. 
by  innocent  agent,  5. 
by  irresponsible  agent,  2,  4,  5. 

by  child,  34,  42. 

by  failure  to  keep  promise,  2. 

by  failure  to  perform  duty,  5. 

by  leaving  poison  to  be  administered  to  another  by  innocent 
party,  34. 

by  letting  loose  savage  animal,  42. 

by  madnijin,  34,  42. 
by  misadventure,  24-28. 
by  neglect  to  perform  duty,  68. 
by  performing  operation,  misadventure,  27. 
by  negligence   of    person   professing   skill  in  certain    art,   murder, 

when,  5. 
by  playing  at  lawful  sports,  26. 

Foster's  views,  26. 
by  procuring  conviction  and  execution  by  means  of  perjury  is  not,  43. 
by  reported  acts,  40-42. 

by  administering  poison  at  different  times,  41. 
by  riding  over  child,  25. 

by  substituted  agent,  4.     See  mpra,  by  irresponsible  agent, 
by  substituting  poison  for  medicine,  5,  6. 
by  taking  life  of  child  to  save  mother,  27. 
by  working  upon  nerves,  40,  41. 

causing  death, 

by  securing  conviction  and  execution  through  perjury,  not,  43. 
directly,  2. 
indirectly,  2-4. 
defences  to.     See  Defences  to  Homicide. 


618  '  HOMICIDE. 

Homicide  —  Continued. 
definition  of,  1,  2. 

degree  of,  instruction  as  to,  576-578.     See  Instruction. 
in  attempting  to  arrest, 

on  a  mittimus,  where  defendant  has  given  bond  for  costs,  159. 
without  warrant,  158,  159. 
in  attempting  to  commit  suicide,  is  mxirder,  55. 
in  attempting  to  escape  from  an  unlawful  arrest,  158. 
in  attemjjting  to  kill  another,  160. 
in  committing  an  unlawful  act  less  than  a  felony,  159. 

by  adulterer  in  resisting  husband's  attack,  159,  160. 
in  inducing  to  take  an  excessive  quantity  of  liquor,  162. 
in  preserving  the  peace,  161. 

in  producing  abortion,  57-60,  168.  ^ 

in  resisting  unlawful  arrest,  158. 
kinds  or  classes,  1,  8-32. 

felonious  or  criminal  homicide,  1,  28-32. 

accelerating  death  by  wrongful  act,  35,  37. 
as  to  what  is,  28,  33,  35. 
continuing  effects  of  injury,  33. 
continuing  offences,  44. 

indictment  for.     See  Indictment. 
jurisdiction  over.     See  Jurisdiction. 
death  accelerated  by  accused,  37. 
by  wrongful  act,  35,  37. 
not  relieved, 

by  erroneous  medical  treatment,  37,  38. 

defendant    responsible    for   lack    of    medical 

skill,  38. 
Massachusetts  doctrine,  38,  39. 
by  fact  of  mistaken  medical  treatment,  37,  38. 
by  fact  that  existing  disease  would  have  been  fatal, 

37. 
by  failure  to  procure  medical  aid,  38. 
by  maltreatment,  37. 
by  neglect,  37. 

by  other  assaults  on  deceased,  35. 
relieved  when    death   results   from   subsequently  con- 
tracted disease,  39. 
death  caused, 

by  depriving  of  food,  41,  42. 
by  fright,  40,  41. 

by  giving  mortal  wounds,  36.     See  Mortal  Wounds. 
by  mfecfinr/  person, 
with  plague,  41. 
with  venereal  disease,  41. 
by  procuring  conviction  and   execution  by  means   of 
perjury,  not,  43. 


INDEX.  619 

Homicide — Continued. 

kinds  or  classes —  Continued. 

felonious  or  criminal  homicide —  Continued, 
death  caused  —  Continued. 
by  repeated  acts,  40. 

administering  poison  at  ditferent  times,  41. 
by  shock,  40,  41. 
by  working'  upon  nerves,  40,  41. 
definition  of,  28,  33. 

giving  mortal  vvounds,  30.     See  Mortal  Wounds. 
in  producing  abortion.     See  Aboktiox. 
inciting  a  child  to  murder  another,  34. 
inciting  a  madman  to  murder  another,  34. 
intent  a  necessary  element  in,  29,  34. 
killing  another  in  attempting  suicide,  39. 
leaving  poison  to  be  administered  to  another,  34. 
letting  loose  a  dangerous  beast,  33. 
liability  for  killing  by  third  person,  39. 

when  not  liable  for  killing  of  bystander  by  officer,  39. 
malice  a  necessary  element,  33. 
murder.     See  Murdeu. 
necessary  elements, 
intent,  29,  34. 
malice,  33. 
other  blows  not  relieve  from  liability  for  fatal  blow,  35. 
presence  at  time  of  death  not  necessary,  34. 
rioters  liable  for  acts  of  each  other,  39. 

where  unconnected  with  common  design,  not,  40. 
shooting  at  one  and  killing  another,  31. 
suicide.     See  Suicide. 
what  constitutes,  28,  33,  35. 
wrongful  act  accelerating  death,  35,  37. 
non-felonious  homicides,  8-28. 

excusable  homicides,  1,  21-28. 

as  to  what  constitutes,  17,  18,  21,  22. 

fears  of  a  coward  not  sufficient,  17. 

definition  of,  21. 

distinction  between  justifiable  and  excusable  homicides, 

22. 
homicide  from  compulsion  or  necessity,  17,  18. 
Minnesota  doctrine,  17. 
Tennessee  doctrine,  18. 
kinds  of, 

by  misadventure,  24-28.     See  Misadventure. 
act  must  he, 

done  in  proper  manner,  24. 
lawful  in  itself,  24. 


620  HOMICIDE. 

Hoiniciile — Continued. 

kinds  or  classes  —  Continued. 

non-felonious  homicides —  Continued, 
excusable  homicides  —  Continued, 
kinds  of —  Continued. 
definition  of,  24. 

distinguished  from  chance-medley,  24. 
in  correction  of  child,  24,  27. 

moderation  of  correction,  27. 
use  of  dangerous  weapon,  27,  28. 
in  following  ordinary  occupations,  25. 

by  administering  poison  as  medicine,  25. 
by  adniinistering  medicine  by  mistake,  26. 
by  driving  carriage  over  person,  25. 
by  playing  at  lawful  sport,  2G. 

Foster's  views,  26. 
by  riding  over  child,  when,  25. 
by  throwing  timbers  from  building  into  street, 
when,  25,  26. 
in  self-defence,  23.     See  Defences  to  Homicide, 
Self-Defence. 
what  are,  17,  18,  21,  22. 
justifiable  homicides,  1,  8-21. 
definition  of,  8. 

distinction    between    justifiable   and   excusable    homi- 
cides, 22. 
what  constitute  justifiable  homicides,  8-21. 

homicide  by  officer, 

in  execution  of  criminal,  9. 

by  person  other  than  officer,  murder,  9. 
informality  in  order,  effect  of,  10. 
sentence  must  be  strictly  carried  out,  9.    - 
in  execution  of  duty,  10-16. 

in  dispersing  mob  or  riot,  10. 
in  making  arrest,  10,  11. 
in  preventing  escape,  10. 

necessity  alone  justifies,  11,  12. 
not    permissible    on    charge   of    mis- 
demeanor, 11,  12. 
in  protection  of  justice  of  court,  11. 
in   pursuit  of   one   charged  with   felony, 
10. 
homicide  from  compulsion  or  necessity,  16-18. 
in  case  of  shipwreck,  18. 
rii^lits  of  seamen,  18. 
in  case  of  war,  19-21. 


INDEX.  621 

Homicide  —  Continued. 

kinds  or  classes  —  Continued. 

non-felonious  homicides  —  Continued, 
justifiable  homicides —  Continued. 

homicide  from  compulsion  or  necessity —  Continued, 
in  case  of  war —  Continued. 

McLeod's  Case,  '2(1,  21  n. 
necessity  must  be  apparent  and  imminent,  16. 
to  secure  food,  not,  18,  19. 
when  not  justifiable,  17. 

fears  of  a  coward  do  not  justify,  17. 
Minnesota  doctrine,  17,  18. 
Tennessee  doctrine,  18. 
homicide  in  preventing  a  felony,  12. 

by  a  father,  of  one  who  attempts  to  rape  his  daugh- 
ter, 12. 
by  a  husband,  of  one  who  attempts  to  rape  his  wife, 

12. 
by  a  woman,  of  one  wlio  attempts  to  ravish  her, 

12. 
burden  of  proof  on  slayer,  12.     See  Evidence. 
what  justifies,  12,  13. 
felonious  assault,  13. 

■without  force,  otherwise,  13. 
homicide  in  preventing  misdemeanor,  not,  13. 

killing  to  jirevent  trespass,  not,  14. 
homicide  in  protecting  federal  justice,  15. 

release  on  habeas  corpus,  15,  16. 
homicide  in  protecting  property,  etc.,  is,  when,  14. 
Alabama  doctrine,  14,  15. 
Kentucky  doctrine,  14. 
homicide  hi  war,  19-21. 

McLeod's  Case,  20,  21  n. 
neglect  to  perform  duty,  resulting  in  death,  68. 
person  assaulted  must  have  been  living,  34. 

death  must  have  been  produced  by  the  alleged  cause,  34. 
need  not  be  sole  or  immediate  cause,  34,  35. 
reducing  to  manslaughter,  142. 
through  fear,  9G. 
through  innocent  agent,  5. 
through  irresponsible  agent,  2,  4,  5,  34,  42. 
what  constitutes,  1,  2,  34. 

Idem  sonan.s, 

doctrine  of,  594-596. 
in  indictment,  204-306. 

Ill-feeling, 

proof  of  previous,  499.     See  Evidence. 


G22  HOMICIDE. 

Improper  devotion  to  a  female, 

as  a  motive  to  a  crime,  517,  518. 
« In  the  king's  peace," 

as  to,  6(5. 

Indictment  and  information, 

accessories     before     the     fact     charged     as    advisors    or    abettors, 

130. 
alleging  time  of  act  causing  death,  298,  299. 

proof  need  not  conform  to,  299. 
as  to,  271-315. 
averment  of, 
death,  301. 

showing  where  death  took  place,  303. 
defendant's  sanity,  307. 
degree,  287,  288. 
injui'y  causing  death.  288. 
intent,  282,  283. 

of  premeditation  and  deliberation,  285-287. 
"  wilfully,  feloniously,"  etc.,  283-285. 
instrument  causing  death,  289-291. 
means  and  manner  of  homicide,  288,  289. 
time  of  act  causing  death,  298,  299. 
proof  need  not  conform  to,  299. 
place  of  act  causing  death,  301-303. 
under  federal  statutes,  301,  302. 
under  state  statutes,  302,  303. 
unlawfulness  of  act,  280,  281. 
W'eapon  causing  death,  289-291. 
weapon  in  defendant's  hand,  291,  292. 

charging, 
killing, 

by  poisoning,  294. 

by  strangulation,  393. 

while  committing  another  offence,  288. 

with  bludgeon  or  stick,  283. 

with  gun  or  pistol,  292,  293. 
more  than  one  homicide  by  same  act,  308. 
the  offence,  276-278. 

at  common  law,  278,  279. 

averment  that  the  act  was  unlawful,  280,  281. 

general  rules,  276. 

when  sufficient,  277. 

in  abortion,  281,  282. 

in  the  language  of  the  statute,  279,  280. 


INDEX.  623 


Indictment  and  information  —  Continued. 
charging  —  Continued. 

the  offence —  Continued. 
in  two  counts,  278. 

compelling  election,  278. 
conclusion  of  indictment,  307,  308. 

description, 

of  deceased,  303. 

setting  out  Christian  name,  803,  304. 
idem  sonans,  doctrine  of,  304-306. 
of  wound,  294-298. 

at  common  law,  295,  29G. 
giving  dimensions  of  wound,  294. 
describing  incised  wound,  206. 
giving  part  of  body,  294. 
incised  wound,  in  case  of,  296. 
repugnance  in,  297. 

variance  between  allegation  and  proof,  297. 
essentials  of,  271,  272. 
filing  on  change  of  venue,  334,  335. 
for  aiding  and  abetting  suicide,  53. 

proof  necessary  to  convict  under,  53. 
for  infanticide,  stating  sex  of  child,  7. 
joinder  of  courts  in,  308,  309. 

different  modes  of  committing  same  offence,  309. 
different  offences,  309,  310. 
joint  indictment,  314. 

matters  pertaining  to  the  finding  of,  272-274. 
necessity  for,  271. 

not  lie  for  omission  to  perform  duty,  5. 
not  lie  for  omission  to  perform  promise,  2. 
of  accessory  before  principal,  136. 
of  accessories  before  the  fact  to  a  suicide,  form  of,  57. 
principals  and  accessories,  310-312. 

indictment  of  as  co-conspirators,  312,  314. 
service  of,  362. 

incorrect  copy,  effect  of,  363. 
right  to,  362,  363. 
time  of  service,  363. 
waiver  of,  364. 
signature  and  indorsement  of,  315. 
specifying  degree,  287,  288. 
the  caption,  274,  275. 
form  of,  274. 

New  York  doctrine,  274,  275. 
what  must  show,  275, 
written  caption,  274. 


624:  HOMICIDE. 

Iiidictmetit  and  information— Co?j?muerf. 

time  of  act  causing  deatli,  298,  299. 

proof  need  not  conform  to  allegation  of,  299. 
time  of  death,  300. 

allegations  of,  at  common  law,  300. 
showing  where  death  took  place,  303. 
where  blow  struck  in  one  country  and  death  occurs  in  another,  45. 
indictment  to  be  found  in  country  where  blow  struck,  45. 

to  allege  stroke  at  place  of  assault,  and  death  in  latter  coun- 
try, 45. 
Information.     See  Indictment  and  Information. 
Infanticide, 

killing  child  to  save  life  of  mother,  27. 
stating  sex  of  child  in  indictment,  7. 
what  amounts  to,  6. 

injuries  received  after  birth,  0. 
injuries  received  before  birth,  6. 
injuries  received  during  birth,  0. 

by  means  used  to  assist  delivery,  7. 
Insanity.     See  Defences  to  Homicide;  Evidence. 
burden  of  proof,  as  to,  537,  538. 
proof  of,  520-527,  560,  5G1.     See  Evidence. 
resulting  from  intoxication,  as  a  defence,  247,  248. 
suicide  as  evidence  of,  51,  62. 
Inspection  by  jury.     See  Jury  and  Jurors. 

right  of  defendant  to  be  present,  381. 
Instructions  to  jury, 
as  to,  575-588. 

as  adequate  cause  or  provocation  and  cooling  time,  153. 
as  to  adequate  cause  where  insulting  words  used  towards  a  female 

relative,  148. 
as  to  alibi,  588. 

as  to  competency  and  weight  of  evidence,  581. 
as  to  evidence  of  accomplice,  588. 
as  to  excuse  or  justification,  .579,  580. 
as  to  form  of  verdict,  586,  587. 
as  to  involuntary  manslaughter,  167. 
as  to  justification,  579,  .580. 
as  to  manslaughter,  578,  579. 
as  to  murder  in  the  first  degi'ee,  103. 
as  to  punishment,  581,  582. 
as  to  reasonable  doubt,  571,  572,  588. 
as  to  the  degree  of  murder,  576-578. 
as  to  verdict,  581. 

cliarging  erroneously,  167,  575,  .576. 
charging  insufficiently,  576. 
contradictory,  585,  586. 


INDEX.  625 

Instructions  to  jury  —  Continued. 

figure  of  speech,  using,  in,  58G. 

form  of,  as  to,  582-585. 

misleading,  585,  586. 

repetition  of  instructions,  582. 

right  of  accused  to  be  present  during,  381,  382. 

sufficiency,  as  to  form,  582-585. 

using  figure  of  speech  in,  586. 

what  questions  submitted,  575. 

written,  587. 
Intent, 

as  an  element  in  homicide,  28. 

criminal,  supplied  by  carelessness,  96,  97. 

in  murder, 

nature  of,  67. 

instantaneously  formed,  32. 

liability  for  homicide  not  intended,  39. 

presumed  when,  28-34. 

to  inflict  bodily  harm,  29. 

to  shoot  one,  and  shooting  another,  31. 

to  use  a  deadly  weapon,  and  to  kill,  distinction  between,  82. 
Intoxicating  liqnors, 

causing  death  by  inducing  to  drink,  2-4,  162. 

evidence  as  to,  excessive  use  of,  489.     See  Evidence. 

use  of,  shown  in  defence  of  insanity,  522.     See  Evidence. 
Intoxication, 

as  a  defence  to  homicide.     See  Defences  to  Homicide. 

of  deceased  using  insulting  language  may  be  considered,  145. 
Irregfularities  in  preliminary  examination, 

as  to,  266. 
Irresponsible  agent, 

causing  death  by,  2,  5. 

failure  to  perform  promise,  dePoth  ensuing,  2. 

failure  to  perform  duty,  death  ensuing,  5. 
Jealousy, 

as  a  motive  to  a  crime,  519.     See  Evidence. 
Judge, 

sentencing  to  death  without  jurisdiction  guilty  of  murder,  9. 
Jurisdiction, 

as  to  court,  264. 

as  to  person,  263. 

as  to  place,  259-263. 

of  the  federal  courts,  261-263. 

murder  in  fort,  arsenal,  etc.,  261,  262. 

murder  in  military  reservation  by  one  soldier,  of  another,  262. 
murder  in  river,  haven,  etc.,  262. 
40 


626  HOMICIDE. 

Jurisdiction  —  Continued. 

as  to  place  —  Continued. 

of  the  federal  courts  —  Continued. 
murder  on  high  seas,  261. 

where  wound  and  death  occur  on  high  seas,  143. 
where  wound  given  on  high  seas,  and  death  occurs  on  land, 
143,  260,  261. 
of  the  state  courts,  259-261. 
at  common  law,  261. 
where  blow  struck  on  high  seas,  and  death  occurs  on  land, 

143,  260,  261. 
where  committed  partly  in  one  jurisdiction  and  partly  in 
another,  44-48,  260,  263. 
proving  venue,  259. 

where  blow  struck  in  one  country,  and  death  ensues  in  another, 
44-48,  260,  263. 

custom  of  carrying  body  to  jurisdiction  where  blow  given, 

46. 
doctrine  at  conmion  law,  45,  46. 
doctrine  in  the  United  States,  46,  47. 
how  jurisdiction  determined,  48. 
jurisdiction  in  country  where  blow  given,  45,  47. 
statutes  conferring  jurisdiction,  47. 
constitutionality  of,  47. 
where  offence  commenced  in  one  jurisdiction  and  completed  in 
another,  260,  263. 
Jury  and  jurymen, 

challenge  for  cause,  395—406. 
for  bias, 

actual  bias,  395-397. 
implied  bias,  395. 
for  prejudice, 

against  anarchism,  398,  399. 
against  capital  punishment,  397. 
against  circumstantial  evidence,  399. 
peremptory  challenges,  400,  401. 
right  to  challenge,  393. 

reopening  challenge,  399,  400. 
voir  dire  declarations,  396. 
defendant's  list  of  jurors,  393-395. 
discharge  of  jury,  403,  404. 
drawing  juiy,  389-391. 
duty  of  jury  after  retiring,  112. 
failure  of  jury  to  agree,  327,  328. 

groimd  for  bail,  when,  328. 
impanelling  jury,  389-391. 
instructions.     See  Instklctioxs  to  Jtry. 


INDEX. 


627 


Jury  and  jur>TllCll — Continued. 
misconduct  of  or  relating  to, 
after  i-etiring,  41:2-415. 

conferring  with  outside  parties,  412. 

duty  of,  after  retiring,  412. 

examining  things  not  in  evidence,  413-415. 

reading, 

accounts  or  records  of  other  trials,  etc.,  413. 
law  books,  413,  414. 
during  trial,  407-412. 

as  to  officer  in  charge,  407,  408. 

conduct  and  words  of  counsel,  412. 

jury  attending  church,  409,  410. 

jury  holding  conununication  with  outside  parties,  408,  409. 

use  of  liquor  by  jury,  410,  411. 

discretion  of  trial  judge,  411,  412. 
waiver  of  irregularities  touching,  412. 
polling  the  jury,  .596,  597. 

compromise  verdict,  596,  597. 
duty  of  juror  on,  596. 
right  to,  596, 
qualification  of  jurors,  391. 

conviction  of  infamous  crime,  391. 

pardon,  391. 
objection  to  be  taken,  when,  392,  393. 
when  objection  to  be  taken,  392,  393. 
right  to  trial  by,  385-387. 

waiver  of,  387-389. 
separation  of  jury,  404-407. 
after  retiring,  407. 
during  meals,  etc.,  406,  407. 
during  trial,  404,  405. 

permission  to  juror  to  visit  sick  relative,  405,  406. 
summoning  jury,  389-391. 
swearing  the  jury,  401-403. 
form  of  oath,  402,  403. 
in  presence  of  accused,  401. 
re-swearing,  401. 

using  real  name,  401,  402. 
what  record  must  show,  403. 
when  sworn,  discretion  of  trial  court,  402. 
to  determine  whether  there  was  deliberation  and  cooling  time,  70. 
view  of  premises  by  jury,  534,  535. 
Justice  of  Supreme  Court, 

homicide  in  protecting,  514. 
Justification, 

instruction  as  to,  579,  580.     See  Instruction. 


628  HOMICIDE. 

King's  peace, 

in  the,  66. 
LiCtting  loose  a  dangerous  beast, 

and  death  ensuing,  it  is  criminal  homicide,  34. 
Limitation  of  action, 

in  prosecutions  for  manslaughter,  258. 
in  prosecutions  for  murder,  257,  258. 
statute  must  be  pleaded,  256. 

time  within  which  prosecution  to  be  brought,  255. 
when  statute  ceases  to  run,  257. 
Liquor, 

killing  by   giving  excessive    quantity   in    joke,    162.       See    Man- 
slaughter; Practical  Joke. 
Lunatic, 

may  commit  suicide  during  lucid  interval,  52. 
Lying  in  wait, 

to  commit  trespass,  homicide,  106. 
Madman, 

inciting  to  kill  another,  murder,  34. 
Malice, 

aforethought,  definition  of,  83. 

what  constitutes,  83. 
antecedent,  presumed  ground  of  killing,  when,  78. 
antecedent  quarrel,  presumption  of  malice  from,  78. 

question  for  jury,  78. 
burden  of  proof  as  to,  535-537. 
express, 

effect  of,  1  71.,  2. 

what  is,  68. 
implied,  effect  of,  1  n.,  2. 
in  murder. 

must  exist  at  time  of  homicide,  68. 

requisites  of,  67. 
inferred  from  carnal  intercourse  with  girl  under  ten,  41. 
intoxication  may  be  shown  as  affecting,  244,  245. 
killing  with  malice  is  murder,  28. 
not  disproven  by  provocation,  91 . 
not  proved   merely  by  selecting  and  using  deadly  weapon  without 

lawful  excuse,  83. 
presumed, 

from  act  evincing  "abandoned  and  malignant  heart,"  77. 

from  act  of  killing,  wiien,  76. 

from  administering  poison,  84,  106. 

from  antecedent  quarrel,  78. 
question  for  jury,  78. 

from  assault,  88,  89. 


INDEX.  629 

Malice  —  Continued. 

presumed  —  Continued. 

from  carnal  intercourse  with  a  girl  under  ten,  41. 

fi"om  cruel  and  inhuman  punishment,  89. 

from  deadly  weapon  used,  8(»,  81.     See  Deadly  Weapon. 

from  husband  following  wife  and  killing  paramour,  90. 

from    interfering  between   combatants   and   needlessly   killing 

one,  77,  78. 
from  lying  in  wait,  106. 
from  making  of  dynamite  bombs,  78,  79. 
rule  in  Colorado,  79. 
rule  in  Louisiana,  80. 
from  means  used,  80,  83. 

use  of  deadly  weapon,  80,  81.     See  Deadly  Weapon. 
■when  malice  presumed,  82,  83. 
from  mutual  combat  with  deadly  weapons,  90. 
from  pre-arranged  quarrel,  86,  87. 
from  purchasing  and  carrying  deadly  weapons,  466. 

custom  in  community  does  not  affect  the  rule,  466. 
from  pursuit  on  quarrel,  85,  86,  88. 
from  renewal  of  quarrel,  87,  88. 
from  surrounding  circumstances,  84. 
from  threats  before  the  killing,  84,  85,  461. 
from  threats  coupled  with  a  condition,  85. 
from  use  of  ineans  calculated  to  produce  death  under  peculiar 

circumstances,  83,  84. 
from  violent  assault  on  pregnant  woman,  84. 
to  continue,  91. 

previous  malice  not  presumed  in  killing,  when,  157. 
when  presumed,  77. 
previous  malice  not  presumed  in  killing,  when,  157. 
purchasing  and  carrying  deadly  weapons  shows,  466. 

custom  of  community  does  not  affect  the  rule,  466. 
threats  of  defendant  shows,  84,  85,  461. 
Maltreatment, 

of  wound  will  not  relieve  from  liability  for  giving,  37. 
Planner  of  homicide, 

averring  in  indictment,  288,  289. 
Manslaughter, 

accidentally  firing  into  a  crowd,  94. 
accidentally  killing, 

antagonist  by  a  chance  blow  at  fist  fight,  161. 

by  firing  gun  into  street,  162. 

by  firing  into  crowd,  94. 

by  heedless  act,  96. 

by  raising  heavy  article  over  crowded  street,  162. 

by  riding  unruly  horse  into  crowd,  162. 


630  HOMICIDE. 

Manslaughter —  Continued. 

accidentally  killing  —  Continued. 

by  throwing  stones  into  street,  162. 
by  use  of  weapon,  when  not  justified,  161. 
in  lawful  sport  not  dangerous,  162. 

in  the  performance  of  an  unlawful  act,  not  felonious,  161. 
in  shooting  at  poultry,  intending  to  steal,  1G2. 
in  the  improper  performance  of  a  lawful  act,  162. 
in  the  negligent  performance -of  a  lawful  act,  162. 
in  the  negligent  use  of  firearms,  162. 
in  proper  performance  of  an  act  not  felonious,  161. 
in  the  unlawful  use  of  firearms,  1G2. 
act  committed  heedlessly,  and  death  resulting,  96. 

adequate  provocation  or  cause  for, 

adultery  with  slayer's  wife,  154. 

must  be  caught  in  act,  155. 
as  to  what  is,  143. 
assault^ 

as  to  what  constitutes,  149. 

blow  with  fists,  151. 

blow  with  pole,  152. 

blow  with  walking-stick,  150,  151. 

blow  with  weapon,  156. 

grabbing  hold  of,  not,  149,  150. 

instructions  as  to,  149,  150.     See  Instructions. 

striking  with  fists,  151. 

striking  with  pole,  152. 

striking  with  walking-stick,  150,  151. 

striking  with  weapon,  156. 

banter, 

by  deceased  is,  when,  151. 
followed  by  encounter,  153,  154. 

civil  trespass, 

is  not  adequate  cause  justifying  killing,  157. 
killing  in  effort  to  eject,  158. 
killing  in  heat  of  passion,  158. 

criminal  intimacy, 

■with  a  female  in  charge  of  the  slayer,  155. 

with  a  female  relative,  155. 
forfeiting  bail,  and  threats  of  resistance,  not,  153. 
instructions  as  to,  153.     See  Instructions. 

insulting  words  or  conduct, 

cooling  time,  effect  on,  149.    See  Deliberation  and  Cooi> 

I  NO  Time. 
in  defendant's  absence,  148. 


INDEX.  631 

Manslaiij?hter  —  Confin  ued. 

adequate  provocation  or  cause  for —  Continued, 
insulting  wonh  or  conduct —  Continued, 
indecent  proposals, 

to  defendant's  daughter,  147. 
to  defendant's  female  relative,  147. 
to  defendant's  wife,  148. 
towards  defendant's  daughter,  is,  when,  147. 
towards  defendant's  female  relatives,  is,  when,  147. 
towards  defendant's  wife,  148, 
what  is,  within  the  rule,  147. 
killing  another,  154. 

mutual  combat,  155.     See  Mutual  Combat, 
equal  terms  necessary  to,  156,  157. 
provoking  combat  with  malicious  intent,  not,  156,  157, 
what  is,  156. 
when  sought  for  purpose  of  killing,  not,  155-157. 

passion, 

as  criterion,  153. 
engendered  by  assault,  146. 

possession  of  stick,  not,  153, 

preparing  w'eapon,  not,  153. 

preventing  defendant's  departure  is,  when,  154. 

shooting  at  defendant  on  another  occasion,  not,  153. 

stopping  defendant  on  public  highway  is,  154,  157. 

words  followed  by  encounter,  153,  154. 

wound  given  by  deceased  is,  when,  151. 
administering  drugs  to  procure  abortion,  167-169. 
administering  poison  to  secure  submission  to  sexual  intercourse,  107. 
causing  death, 

by  administering  diugs  to  produce  abortion,  167-169. 

by  administering  poison  to  secure  submission  to  sexual   inter- 
course, 107. 

by  assault,  167. 

by  attempt  to  produce  abortion,  167,  168. 

by  carelessness  or  negligence, 

in  administering  medicine.  164. 
in  attempting  to  make  an  illegal  arrest,  159. 
in  driving  or  controlling  vehicle,  164,  16.5. 
in  management  of  vessel,  164,  166,  167. 
in  recklessly  handling  firearms,  164,  165. 
in  steamboat  navigation,  164,  166.  167. 

in  suddenly  applying  brake  to  hand-car  or  other  vehicle,  165. 
in  omission  of  duty, 
by  officer, 

in  charge  of  coal  mine  to  give  ventilation,  163. 

in  charge  of  a  vessel  to  keep  proper  lookout,  163. 


032  HOMICIDE. 

Maiislaug-hter —  Continued. 
causing  death —  Continued. 

by  carelessness  or  neijligence  —  Continued. 

in  omission  of  duty  —  Continued. 

hy  officer —  Continued. 

of  railway  tender  to  give  proper  signal,  163. 

of   street-car   conductor   to   keep   proper   lookout, 

164. 
of  switchman  to  turn  proper  switch,  103. 
responsibility  must  be  upon  him  exclusively,  164. 
in  use  of  firearms,  165,  166,  226. 

by  discharge  of  a  pistol  in  sport,  166. 

in  attempting  to  frighten  another,  165. 
by  discharging  gun  into  highway  in  dark,  165. 
by  discharging  gun  to  scare  boys  in  melon  patch,  165. 
by  discharging  pistol  believed  to  be  unloaded,  166. 
in  use  of  poor  and  defective  material  in  building,  164. 
by  burning  boat  in  racing,  106,  167. 
hy  failure, 

of  officer  of  coal  mine  to  give  ventilation,  163. 

of  railway  tender  to  give  proper  signals,  103. 

of  street-car  conductor  to  keep  proper  lookout,  164. 

of  switchman  to  turn  proper  switch,  103. 

to  keep  proper  lookout, 

by  officer  of  vessel,  162. 
by  street-car  conductor,  164. 
by  fright,  3. 

by  giving  excessive  quantity  of  liquor,  3,  162. 
by  gross  carelessness,  162.  • 

by  intentionally  inflicting  wound  in  assault,  167. 
by  negligently  administering  poison,  105. 
by  obstructing  railway  track,  170. 
by  omission  of  duty,  2,  5,  162. 
by  practical  joke,  162. 

building  fire  over  drunken  man,  162. 
duelling,  102. 

giving  an  excessive  quantity  of  liquor,  3,  162. 
shooting  a  gun  to  frighten,  102.  * 

striking  horse  to  annoy  rider,  162. 
throwing  stones  into  a  coal-pit  in  sport,  162. 
upsetting  a  cart  purposely,  162. 
by  recklessly, 

shooting  a  person  attempting  to  escape  from  illegal  arrest,  170. 
shooting  a  person  under  arrest,  170. 
by  rudeness  in  sport,  164. 

by  striking  in  attempting  to  escape  from  illegal  arrest,  170. 
by  threats  causing  fright,  109. 


INDEX.  633 

Manslaug'hter — Continued. 
causing  death —  Continued. 

by  undue  correction  by  person  in  authority,  169,  170. 

indirectly,  3,  4. 
cooling  time,  153.     See  Deliberation  axd  Cooling  Time. 
definition  of,  139,  141,  142,  142  n. 

difficulty  begun  by  defendant,  manslaughter,  when,  loO,  151. 
distinguished  from  murder,  139,  140. 
in  first  degree,  143. 

Alabama  rule,  143. 
instructions.     See  Instkl'Ctions. 

as  to,  167,  578,  579. 
intent  to  kill  not  necessary,  when,  143. 
interview  sought  by  defendant,  146. 
killing. 

adulterer  taken  in  act,  12. 

in  attempting. 

to  arrest  on  mittimus,  when  manslaughter,  159. 
to  arrest  one  charged  with  a  misdemeanor,  12; 
to  arrest  without  a  warrant,  158,  159. 
to  make  an  illegal  arrest,  59. 
to  produce  abortion,  167,  168. 
in  performance  of  an  illegal  act,  24. 
in  resisting  arrest,  11. 

illegal  arrest  in  ordinary  manner,  94. 
officer  in  attempting  to  escape  from  arrest,  158. 
officer  in  resisting  illegal  arrest,  158. 
officer  on  duty  not  knowing  he  is  an  official,  92. 
lying  in  wait  to  commit  trespass,  106. 

limitation  of  prosecution  for.     See  Limitation  of  Action. 
mutual  combat,  155.     See  Mutual  Combat. 
equal  terms,  156,  157. 
provoking  combat,  intent,  156. 
moral  character  of,  140,  141. 

negligence  or  omission  of  duty  causing  death  is,  68. 
no  accessories  before  the  fact  in,  140. 
previous  malice  not  presumed,  157.     See  Malice. 
provocation  causing  passion,  143.     See  Adequate  Provocation. 
cooling    time,    145,    146.      See   Deliberation    and   Cooling 

Time. 
rule  in  Georgia,  145. 
rule  in  New  York,  145. 
what  sufficient,  143,  144. 

words  towards  slayer  not,  144,  145. 
intoxication  of  deceased,  145. 
reducing  homicide  to,  142. 

cooling  time  prevents,  145,  146. 


634  HOMICIDE. 

Manslaiig-hter  —  Continued. 

shootiug, 

attacking  officer,  152. 
father's  adversary  in  mutual  combat,  156. 
in  defence  of  own  house,  152. 
unarmed  adversai-y,  1.52. 

slaying  deceased  in  own  house  is,  when,  157. 

voluntary,  141. 

what  constitutes,  2,  101. 
Marital  infidelity, 

as  a  motive  to  homicide,  518. 
Ma,xiins.     See  AVords,  Phrases,  and  Maxims. 
Medical  treatment, 

mistaken,  not  relieve  from  felonious  assault,  37. 
Means  and  manner  of  homicide, 

averring  in  indictment,  288,  289. 
Mental  condition, 

conduct  and  appearance  as  indicating,  409.     See  Evidence. 
Mercy, 

recommendation  to,  in  verdict,  594.     See  Verdict. 
Mistake  iu  medical  treatment, 

does  not  relieve  from  felonious  assault,  37. 
Misdemeanor, 

killing  in  attempting  to  arrest  for,  is  murder,  11. 

killing  in  prosecuting  conspiracy  to  commit,  128. 
co-conspirators  not  liable,  128. 
Mittimus, 

does  not  justify  officer  in  attempting  to  make  arrest,  when,  159. 
bond  for  costs,  159,  100. 
Mob, 

confessions  made  through  fear  of  violence  of,  553.    See  Confessioxs. 

killing  in  dispersing,  justifiable,  when,  10. 
Mob  violence.     See  Mob. 
Moral  insanity, 

as  a  defence  to  homicide,  330.     See  Defences  to  Homicide. 
Motive.     See  Intent. 

immunity  from  prosecution,  510.     See  Evidence. 

intoxication  may  be  shown  as  affecting,  239,  240.     See  Defences  to 
Homicide  ;  Intoxication. 
Murder, 

a  homicide  produced  by  joint  blows,  133. 
murder  in  party  striking  last  blow,  133. 

abortion  resulting  in  death  is,  when,  57,  .58,  168. 

banter  does  not  reduce  homicide  to  manslaughter,  151. 

causing  death.     See  Kii.i.ini;  (this  title). 
by  attempting  abortion,  57,  58. 


INDEX.  635 , 

Murder — Continued. 

causing  death —  Continued. 

by  compelling  man  to  jump  from  moving  train,  96. 

by  giving  infant  overdose  of  laudanum,  84. 

by  gross  carelessness,  97. 

by  maliciously  administering  poison,  105. 

by  misconduct,  97. 

by  placing  infant  child  in  perilous  situation,  68. 

hij  recklessly, 

burning  a  steamboat  while  racing,  98. 
compelling  a  man  to  jump  from  a  moving  train,  96. 
driving  a  vehicle  over  a  child,  97. 
firing  a  gun  into  a  crowcl,  97. 
to  frighten  a  horse,  95. 
^vith  fatal  effect,  97. 
forcing  seaman  not  fit  for  duty  to  go  aloft,  98. 
giving  an  infant  an  overdose  of  laudanum,  84. 
pointing  a  loaded  gun  at  another,  97. 

without  examination  to  learn  whether  loaded,  97. 
running  dangerous  machinery,  97. 
steering  a  vessel,  97. 

throwing  wood  or  other  missile  into  street,  97. 
by  substituting  poison  for  medicine,  5,  6. 
by  wilful  cruelty,  68. 
by  wilful  omission  of  duty,  68. 
indirectly,  2-4. 
of  mother,  by  attempting  to  kill  child,  168. 

by  using  drugs  or  medicine,  168. 
through  substituted  agent,  not,  when,  4-6. 
compelling  a  man  to  jump  from  a  moving  train,  death  ensuing,  96. 
death  of  child  after  birth  because  of  potions  administered  or  bruises 

received  while  in  the  woml),  is,  when,  168. 
definition  of,  65. 

at  common  law,  65. 
in  the  United  States,  65. 
degrees  of, 
in  (/eneral, 

at  common  law,  98. 
distinguished,  98. 
no  presumptions  as  to  degree,  99. 
under  statute,  98. 

in  California,  99. 
in  Delaware,  99. 
in  Iowa,  99. 
in  Maryland,  100. 
in  Michigan,  100. 
in  Minnesota,  100. 


G36  HOMICIDE. 

Murder  —  Continued. 

degrees  of — Continued. 
in  general —  Continued. 

under  statute  —  Continued. 
in  Missouri,  100. 
in  Nevada,  101. 
in  New  Hampshire,  101. 
in  Pennsylvania,  101. 
in  Tennessee,  102. 
in  Texas,  102. 
first  degree,  102-118. 

bailable,  when.     See  Bail. 
definition  of,  102-104.- 
instruction  to  the  jury  respecting,  103. 
killing  a  woman  in  struggling  to  rape  her,  127. 
killing  by  administering  poison  for  the  purpose  of  stupe- 
fying, 107,  108. 

to  obtain  possession  of  property,  107. 
to  obtain  sexual  intercourse,  107,  108. 
killing  in  perpetrating  forcible  felony,  102,  106,  127. 
maliciously  administering  poison,  105. 
premeditation  and  deliberation  necessary  to,  66,  104. 

what  constitutes  premeditation,  104,  105,  107,  119.    See 
Deliberation  and  Cooling  Time;  Premeditation. 

rule  as  to,  in, 

Alabama,  108,  143. 

Arkansas,  108. 

California,  108,  109. 

Florida,  109. 

Indiana,  109. 

Iowa,  109. 

Kansas,  109,  110. 

Massachusetts,  110. 

Minnesota,  110. 

Missouri,  110-112. 

Nebraska,  112.  .        , 

New  Jersey,  112. 

New  York^  112-114. 

Oregon,  114,  115. 

Pennsylvania,  115,  116. 

Tennessee,  IKi,  117. 

Texas,  117,  118. 

West  Virginia,  118. 
rules  for  construction  of  statutory  provisions,  relating  to, 
104-106. 
second  degree,  118-125. 
definition,  118. 


INDEX.  637 

Murder  —  Continued. 

degrees  of  —  Continued. 

second  degree —  Continued. 

design  or  purpose  to  kill,  former,  119.    See  Intent. 

formed  in  midst  of  conflict,  119. 
essentials  of,  rules  as  to,  impracticable,  119. 
includes  what,  118,  119. 
rule  as  to,  in, 

Arkansas,  120,  1-21. 
California,  121. 
Delaware,  121,  122. 
Iowa,  122. 
Missouri,  122.  123. 
Tennessee,  123,  124. 
Texas,  124. 
Wisconsin,  124,  125. 
what  is  included  in,  118,  119. 
other  degrees,  125. 

in  New  Mexico,  125. 
in  Wisconsin,  125. 
deliberation.     See  Deliberation  and  Cooling  Time. 
exposing  sick  and  weak  person  to  cold,  68. 
firing  into  crowd,  94,  97. 

gross  carelessness  or  misconduct  resulting  in  death,  97. 
in  federal  jurisdiction,  what  killing  is,  66. 
in  first  degree,  bailable,  when.     See  Bail. 
in  the  king's  peace,  66. 
inciting  madman  to  kill  another,  34. 

interfering  between  combatants  and  needlessly  killing  one,  77,  78. 
judge  passing  sentence  without  jurisdiction,  9. 

killing, 

a  child  by  injury  from  use  of  drugs  or  instruments  while  in 

womb,  168. 
a  person  on  firing  to  frighten  a  horse,  95. 
after  proposed  combat,  91. 
alien  enemy  not  in  arms,  66. 
by  a  pickpocket  pursued  by  a  citizen,  96. 
by  administering  poison,  84,  105. 
by  compelling  person  to  jump  from  moving  train,  96. 
by  exposing  sick  and  weak  person  to  severe  cold,  68. 
hy  firing  a  gun, 

into  a  crowd,  94,  97. 

to  frighten  a  horse,  95. 
by  giving  an  infant  an  overdose  of  laudanum,  84. 
by  maliciously  administering  poison,  105. 
by  setting  spring-guns,  214. 
by  robbers  pursued  and  overtaken,  96. 


638  HOMICIDE. 

Murder —  Continued. 
killing — Continued, 
hy  wilful, 

cruelty  to  child,  68. 

omission  of  duty,  68. 
bystander  in  shooting  affray,  95. 
deliberately,  wife's  paramour,  90. 
deserters,  66. 
in  assault  to  do  bodily  harm,  88. 

otherwise  where  there  is  no  intent  to  harm,  89. 
in  attempting  to  arrest  one  charged  ^Yith  a  misdemeanor,  11. 
in  attempting  to  make  an  illegal  arrest,  159. 
in  committing  a  felony,  9.5,  129. 

in  carrying  away  a  vessel,  95. 

under  New  York  tramp  act,  96. 
in  cruel  and  inhuman  punishment,  89. 
in  executing  conspiracy  to  carry  away  a  vessel,  95. 
in  mutual  combat  with  deadly  weapon,  90. 
in  prosecution  of  conspiracy.     See  Conspiracy. 

to  carry  away  a  vessel,  95. 

to  commit  a  felony,  129. 
in  resisting  assault  is,  ^Yhen,  13. 
in  resisting  arrest,  13. 
in  retreat  and  pursuit  on  quarrel,  85. 
in  revenge  for  assault  upon  defendant's  son,  89. 
in  the  king's  peace,  06. 

what  is,  66. 
mother  in  attempting  abortion.     See  Abortiox. 

in  attempting  to  kill  child  by  use  of  drugs  or  instruments,  168. 
needlessly,  on  interfering  between  combatants,  77,  78. 

officer, 

attempting  to  arrest  without  a  warrant,  not,  when,  158,  159. 

knowledge  of  right  to  arrest  without,  92. 

in  attempting  to  escape  from  a  lawful  arrest,  158. 

in  the  discharge  of  his  duty,  92. 

acting  under  void   process    no  mitigation    or  excuse, 

when,  92. 
by  escaped  convict,  93. 
by  using  deadly  weapon,  93. 

knowledge  of  right  to  arrest  without  a  warrant,  92. 
in  resisting  lawful  arrest,  158. 
on  interfering  between  combatants,  77,  78. 
on  pre-arranged  quarrel,  86. 
on  renewal  of  controversy,  87,  88. 
one  person  in  attempting  to  kill  another,  94. 

in  attempting  to  kill  an  officer,  05. 
one  who  assaults  by  laying  hands  on,  197. 


INDEX.  639 

Murder — Continued. 
killing —  Continued. 

persons  with  safe  conduct,  66. 

prisoners  of  war,  GO. 

to  prevent  trespass,  14. 

■wife's  paramour,  deliberately,  90. 

with  specific  malicious  intent,  67.     See  Intent. 
nature  of  the  intent,  67. 
requisite  of  malice,  07.     See  jNIalice. 
must  exist  at  time  of  killing,  08. 
limitation  of  prosecution  for.     .See  I^i.aiitatiox  of  Action. 
malice.     See  Ma  lick. 
maliciously  administering  poison,  105. 
nurse  producing  death  by  giving  infant  laudanum,  84. 
on  the  high  seas, 
I         .         Jurisdiction  of, 

federal  court,  143,  201. 
the  offence,  201. 

wound  and  death  must  take  place  on  high  seas,  143. 

wound  on  high  seas,  and  death  on  shore,  143. 
passing  sentence  of  death  without  jurisdiction,  9. 
placing  tender  infant  in  perilous  situation,  08. 
premeditated  design,  06.     ^ee  First  Degree  (this  title). 

what  is  not,  119.     See  Premeditation. 
principals  and  accessories.     See  Principals  and  Accessories. 
suicide  is  self-murder,  52. 

aiders  and  abettors  in,  guilty  of  murder,  .52. 
taking  the  life  of  another  at  his  request  is  murder,  60,  61. 
■what  killing  is  murder, 

as  to,  2. 

in  federal  jurisdiction,  00. 
who  may  be  murdered,  06,  07. 
wilful  omission  of  duty  causing  death,  68. 
■wilful  cruelty  to  child  producing  death,  68. 
Mutual  combat, 

accidental  killing  third  person,  manslaughter,  160 

as  to,  155,  150. 

does  not  raise  right  of  self-defence,  202,  203. 

equal  terms,  156,  157. 

notice  of  desire  to  withdraw  from,  202. 

effect  of  such  notice  on  subsequent  killing,  202. 
provoking  combat,  150. 

intent  of  slayer,  156. 
shooting  father's  antagonist  in,  is  voluntary  manslaughter,  156. 
slaying  another  in,  is  manslaughter,  155. 

otherwise  where  encounter  sought  as  an  excuse  for  the  killing, 
155,  150. 


()40  HOMICIDE. 

Mutual  combat  —  Continued. 

sought  for  the  purpose  of  kilHng,  murder,  155,  156. 

what  is,  156. 

equal  terras  of  combat,  156,  157. 

-where  sought  for  the  purpose  of  killing,  155,  156. 
Neg^ative  evidence.     See  Evidence. 

of  character,  485-489. 

Negligence, 

causing  death, 

by  person  professing  skill  in  certain  arts,  5. 
will  not  excuse  from  felonious  assault,  37. 
Officer, 

killing.     See  Murder. 

showing  to  have  been  in  discharge  of  his  duty  at  time  of  killing,  509. 
See  Evidence. 
Opinion  evidence.     See  Evidence. 
as  to,  523-525. 

Other  crimes, 

when  may  be  shown,  511-513.     See  Evidence. 
Overt  act, 

must  be  shown  where  there  have  been  threats,  433.     See  Threats. 
Perjury, 

causing  conviction  and  execution  by  means  of,  not  felonious  homi- 
cide, 43. 

Persons  with  safe  conduct, 

killing,  is  murder,  66. 
Physical  superiority, 

of  defendant,  483.     See  Evidence. 

Physician's  skill, 

accused  responsible  for,  38. 

Pistol, 

charging  killing  with,  292,  293. 
Plea.     See  Arraicnmext  and  Plea. 
Poison, 

administered  at  different  times,  causing  death,  41.     See  Continuing 
Okfknces  ;   Hepeated  .\cts. 

charging  killing  by  means  of,  294. 

evidence  against  person  as  accessory,  134,  135. 

leaving,  to  be  administered  to  another,  34,  105. 

maliciously  administering,  105. 

nurse  administering  laudanum  to  infant,  murder,  84. 

preliminary  examination  or  hearing', 

adjournment  of,  267,  26«. 


INDEX.  641 

Preliminary  examination  or  hearing — Continued. 
by  whom  to  be  held,  200. 

powers  and  duties  of  offices  holding,  266. 

securing  attendance  of  witnesses,  266,  267. 
effect  on  right  to,  of  finding  indictment,  267. 
irregulai'ities  in,  266. 

effect  00  commitment,  266. 
reducing  testimony  at,  to  writing,  268. 
re-examination,  266. 

•when  to  be  had,  266. 
right  to,.  265. 

effect  on,  of  indictment,  267. 
testimony  taken  at, 

as  evidence  on  trial,  509. 

reducing  to  writing,  268. 
manner  of,  268,  269. 
•warrant  of  commitment  on,  269. 
■when  to  be  held,  267. 

adjournment  of,  267,  268. 

Premeditation.     See  Evidence  ;  Murder,  First  Degree. 
and  deliberation,  necessary  to  murder,  104. 

averment  of,  285,  287. 

what  constitutes,  104,  105,  107. 
premeditated  design  in  murder,  66.     See  Intent. 

Principals  and  accessories, 

accessories, 
kinds  of, 

after  the  fact,  136. 

affirmative  act  necessary  to  constitute,  136,  137. 
effect  of  relation,  137. 

yviie  cannot  be  at  common  law,  to  husband's  crimes,  137. 
■who  are,  136. 
before  the  fact,  135. 

advisers  or  abettors,  136.     See  Aiders  and  Abettors  ; 

Suicide. 
affirmative  act  necessary  to  constitute,  135. 
aid  or  encouragement  given  must  continue,  136. 
comnmnication  must  be  direct,  136. 
liability  of,  135,  136. 
may  be  indicted,  tried,  or  convicted  after  principal,  136. 

or  before  principal,  13G. 
means  prescribed  need  not  be  used,  136. 
none  in  manslaughter,  140. 
standing  upon  watch,  134. 
•who  are,  135. 

degree  of  concert  necessary,  126, 

41 


642  HOMICIDE. 

Principals  and  accessories — Continued. 
accessories  —  Continued. 
kinds  of —  Continued. 

punishment  alone,  affected  by  the  degree  of,  126. 
standing  upon  watch,  134. 
acts  of  one  bind  all,  126. 
definition  of,  125,  126. 

degree  of  concert  necessary  to  constitute,  126. 
distinction  between,  abolished  by  statute,  128,  129. 
joint  effect  of  blows,  murder  in  giver  of  last,  133. 
loaning  weapon  and  encouraging  shooting  makes  one  a  principal,  133  n. 
person  present  assisting  in  homicide  a  principal,  133. 

loaning  pistol  and  encouraging  shooting,  133  n. 
principals, 

bystander  taking  part,  not,  134. 
concert  in  assault  necessary,  134. 
design  to  encourage  and  incite,  134. 
kinds, 

in  first  degree,  126-128. 
definition  of,  127. 

doing  act  through  medium  of  child,  34. 
deposited  poison,  127. 
innocent  person,  127. 
insane  person,  127. 
homicide  in  prosecuting  conspiracy  to  rob,  127. 
need  not  be  actually  present,  177,  178. 
in  second  degree,  128. 
definition  of,  128. 
malice  not  necessary  to,  128. 

mere  presence  or  sanction  does  not  constitute,  128. 
mere  presence  does  not  constitute,  134. 
standing  upon  watch,  134. 

taking  part  in  affairs  connected  with,  does  not  make,  134. 
punishment  alone  affected  by  the  degrees  of,  126. 
who  are  aiders  and  abettors,  133  n. 

Prisoners  of  war, 

killing  of,  murder,  66. 
Provocation, 

antecedent  malice,  78. 

killing  presumed  to  be  on,  when,  78. 

blow  with  walkiug-stick  not  sufficient  to  justifj'^  killing,  150,  151. 
fresh,  not  presumed,  91. 
insulting  language,  73,  83. 

used  six  hours  before  not  sufficient,  73. 
mere  words  not  sufficient  to  justify  use  of  deadly  weapon,  83. 
never  disproves  malice,  91. 
passion  after  intent  not  reduce  grade  of  crime,  75. 


INDEX.  643 


Proving"  alibi.    See  Evidence. 

as  to,  572,  574. 
Punishment, 

assessment  of,  in  verdict,  592.     See  Verdict. 

constitutionality  of  statute  providing  for,  592. 

instructions  as  to,  581,  582.     See  Instructions. 
Purpose  to  kill.     See  Murder. 
Quarrelling, 

proof  of  previous,  499.     See  Evidence. 
Reasonable  doubt, 

"  Anarchists'  Case,"  the,  572. 

definition  of,  670,  671. 

doctrine  of,  659-674. 

instructions  as  to,  571,  572,  588.     See  Instructions. 

material  facts  charged,  proof  of,  571. 

meaning  of  term,  670,  671. 

proof  of  material  facts  charged,  571. 

proving  alibi,  572,  574. 
Reconiniendation  to  mercy, 

in  verdict,  594.     See  Verdict. 
Right  to  pursue  assailant, 

as  to,  206,  207.     See  Defences  to  Homicide. 
Repeated  acts, 

causing  death  by,  40,  41. 
liability  for,  41,  42. 
Res  gestae.     See  Evidence. 
Rescue, 

homicide  in  resisting,  216. 
Re-trial.     See  Disagreement  and  Re-trial. 

as  to,  589. 
Revenge, 

as  a  motive  for  a  homicide,  519. 
Revolutionary  organizations, 

adopting  writings  of  others,  492. 

proof  of  such  adoption,  492.     See  Evidence. 
Riot, 

homicide  in  dispersing,  justifiable,  when,  10. 
Rioters, 

liability  of  all  for  homicide  by  one,  39. 

where  homicide  unconnected  with  common  design,  40. 
party  committing  deed  alone  responsible,  40. 
Riotous  or  rebellious  assembly, 

homicide  in  dispersing,  justifiable,  when,  10. 
Safe  conduct, 

killing  persons  with,  murder,  66. 


644  HOMICIDE. 

Secret  organization, 

promotion  of  plans  of,  as  a  motive  for  a  homicide,  514,  515. 
Self-defence.     See  Defences  to  Homicide. 

proving,  559.     See  Evidence. 

Sentence, 

cannot  be  changed  even  by  sovereign,  10. 
may  be  remitted  by  sovereign,  10. 
to  death  without  jurisdiction,  murder,  19. 
Sexual  intercourse, 
causing  death, 

by  administering  poison  to  secure  consent  to,  107. 

by  inocuhiting  with  venereal  disease,  41. 

Shooting", 

at  one  person  and  killing  another,  31. 

by  carelessly  pointing  loaded  gun  at  another,  97. 

into  a  crowd,  97. 

to  frighten  a  horse,  95. 

with  fatal  effect,  97. 

Sick  person, 

exposing,  to  cold,  and  thereby  causing  death,  is  murder,  G8. 

Slvilled  workmen, 

as  experts,  5"J5.     See  Evidence. 
Socialistic  principles, 

proof  of,  490.     See  Evidence. 
Soninanibulisni, 

as  a  defence,  251-254. 

proof  of,  490.     See  Evidence. 

Sovereign, 

sentence  may  not  be  changed  by,  10. 
sentence  may  be  remitted  by,  10. 

Sport, 

rudeness  in,  resulting  in  death,  164. 
voluntary  manslaughter,  164. 

Spring-guns, 

setting,  for  protection  of  property,  214. 

Standing  upon   watch, 

renders  guilty  as  accessory,  1^34. 
Statute  of  limitations.     See  Limitation  of  Action. 
Statutes  prescribing  degrees  of  murder, 

as  to,  99-102. 

rules  of  construction,  104-106. 

Stick, 

charging  killing  with,  293. 


INDEX.  645 

strangulation, 

chavgiiig  killing  by,  293. 
Subsequently  contracted  disease, 

death  from,  relieves  from  felonious  assault,  39. 
Substituted  agent, 

causing  death  h}-,  4-6. 
Substituting  poison  for  medicine, 

causing  death  by,  murder,  6. 
Suicide, 

accessories  before  the  fact,  56. 

absence  when  act  perjtetrated,  57. 
effect  on  criminality,  57. 

indictment  as,  57. 

form  of  indictment,  57. 
accidentally  killing  one  who  attempts  to  prevent,  is  murder,  55. 
aiding  and  abetting,  52,  53. 

advising  another  to  commit,  52,  56. 

agi'eement  to  suicide  together,  52,  54. 
survivor  guilty  of  nuirder,  54,  55. 

presence  and  acquiescence  in  suicide,  55. 
as  evidence  of  insanity,  51,  52. 
attempt  to  commit,  criminal,  55,  60. 
common  law  doctrine  of,  49,  50. 
definition  of,  49. 

high  rate  of,  among  soldiers,  50  n. 
killing  another  in  attempting,  murder,  39, 
punishment  for, 

burying  at  cross-roads,  61. 

burying  with  stake  driven  through  body,  61  n. 

denying  Christian  burial,  61. 

in  Bracton's  time,  62. 

in  the  United  States,  62,  63. 

Irving  Biowne  on,  62  n.,  63  n. 
under  insane  impulse,  50,  51. 
who  may  commit,  50. 

lunatic  in  lucid  interval,  52. 

Sunday, 

verdict  rendered  on,  valid,  590.     See  Verdict. 
Threats.     See  Evidence,  of  Threats. 

causing  fright  resulting  in  death,  involuntary  manslaughter,  169. 

fears  must  be  well  grounded  and  reasonable,  169. 
of  third  persons,  494. 

after  the  homicide.  496,  497. 
before  the  homicide,  494,  495. 
show  deliberation  and  malice,  85. 


646  HOMICIDE. 

Tracks, 

comparison  of,  505.     See  Evide^jce. 
compelling  to  make,  506. 
experiments  with,  out  of  court,  507. 

Transcript, 

filing  of,  on  charge  of  venue,  334,  335. 

Trespass, 

civil,   on   property  not   adequate   cause   to  reduce   killing  to   man- 
slaughter, 157. 
killing  to  prevent,  murder,  14. 

upon  personal  property  does  not  justify  killing  on  ground  of  self- 
defence,  202. 
Trial, 

continuance,  370. 

to  secure  counsel,  370,  371. 
discharge  of  jury  on   failure  to   agree,  336,  337.     See  Jury  and 

Jurymen. 
fixing  time  of,  367,  368. 
joint  defendants, 

determining  order  of  trial,  373. 
separate  trials,  372,  373. 

discretion  of  trial -judge,  372,  373. 
waiver  of,  373. 
when  to  be  demanded,  373. 
waiver  of  separate  trials,  373. 
when  separate  trials  to  be  demanded,  374. 
jury  trial.     See  Jury  and  Jurymen. 
of  accessory  before  principal,  136. 
postponement  of,  368,  370. 

when  postponement  refused,  370. 
presence, 

of  counsel  for  defendant,  384. 
of  defendant,  375-384. 
presumed,  384. 
right  to  be  present,  375-378. 

attending  on  inspection,  381. 
during  delivery  of  testimony,  381. 
during  instruction  to  jury,  381,  382. 
forfeiture  of  right,  378. 
on  inotion, 

for  new  trial,  383,  384. 
in  arrest  of  judgment,  383,  384. 
temporary  absence,  380. 
waiver  of  right,  379,  380. 
■what  the  record  must  show,  376,  378. 
■when  verdict  is  rendered,  382,  383. 


INDEX.  647 

Trial—  Continued. 

right  to  be  present, 
by  counsel,  384. 

in  person,  375-384.     See  Presence  (this  title). 
right  to  speedy  trial,  365,  366. 
the  jury.     See  Jury  and  Jurymen. 
Uncontrollable  impulse, 
killing  under,  228. 

Variance, 

of  verdict  from  indictment,  fatal,  591. 
Venue, 

change  of,  331. 

application  for,  331. 

counter  affidavits  on  application  for,  333,  334. 
filing  indictment  and  transcript  on,  334,  335. 
reasons  for  change,  331. 

Georgia  doctrine,  331,  332. 
proving,  259,  542.     See  Evidence. 

Verdict, 

adjournment  of  court  sine  die,  590  n. 

effect  on  verdict  not  yet  rendered,  590  n. 
assessing  punisliment  in,  592. 

constitutionality  of  statutes  providing  for,  592. 
bad  grammar  and  spelling,  594. 

effect  of,  594,  595. 
compromise  verdict,  596. 

effect  of,  596,  597. 
drunken  man  in  jury  room,  effect  on  verdict,  412  n. 
errors, 

in  grammar,  594. 

in  spelling,  594. 

idem  sonans,  594. 

what  words  are,  594-596. 
filing  of,  on  charge  of  venue,  334,  335. 
form  of,  591. 

amending,  591,  592. 

instructions  as  to,  586.     See  Instructions. 

specifying  degree  of  guilt,  591. 
idem  sonans, 

what  is,  in  verdict,  594-596. 

what  words  are,  595,  596. 
instructions  as  to,  581.     See  Instructions. 
naming  defendant  in,  .593. 
of  guilty  of  murder,  412  n. 

not  set  aside  because  drunken  man  found  in  jury  room,  412  n. 
presence  of  accused  when  rendered,  382,  383. 


648  HOivnciDE. 

Verdict —  Continued. 

recommendation  to  mercy,  594. 

rendered  on  Sunday,  590>591. 

specifically  acquitting  of  higher  or  lower  degrees,  592,  593. 

specifying, 

degree  of  guilt,  591. 
the  count  sustained,  593. 
time  and  manner  of  rendering,  590. 
in  open  court,  590. 
on  Sunday,  590,  591. 
to  be  rendered  in  open  court,  590. 
variance  from  indictment,  591. 
effect  of,  591. 
View  of  premises  by  jury, 

as  to,  534,  535. 
Walkinjif-stick, 

blow  with,  not  adequate  provocation  to  justify  killing,  150,  151.     See 
Provocatiox. 
Weapon, 

as  evidence,  534.     See  Ev^idence. 
proof  as  to,  503-505.     See  Evidence. 
Witnesses.     See  Evidence. 
credibility  of,  416. 
competency  of,  416,  418. 

co-defendant  as  witness,  418,  419,  420. 
husband  and  wife  as  witnesses  for  each  other,  419. 
medical  experts  as  witnesses,  419,  420. 
non-experts  as  witnesses,  527.     See  Opinion  Evidence. 
list  of,  for  defendant,  416. 
non-experts  as,  527. 
number  of,  417,  418. 
qualifications  of,  416. 
separating,  417. 
Words, 

not  adequate  provocation  for  homicide,  144. 
Words,  phrases,  and  maxims, 
apres  le  fait,  45. 
chance-medley,  24. 
corpus  delicti,  421,  425,  535. 
felo  de  se,  49,  52,  58,  59,  60,  61. 
hcBC  voluntas  non  intellecta  fuit  de  voluntate  nudis  verbis  aut  scriptis, 

propalata,  sed  mtindo  inanifestato  fuit  per  apertum  factum,  29. 
idem  sonans,  594,  .595,  596. 
inforo  domestico,  24,  27. 
inforo  conscrentife.  43. 
in  loco  parentis,  89. 


INDEX.  649 

Words,  phrases,  and  maxims  —  Continued, 
in  rerum  nalura,  1  n. 
"  in  the  King's  peace,"  66. 
"  in  the  peace  of  the  State,"  66. 
"  malice  aforethouglit,"  83. 
malum  in  se,  24,  55. 
malum  prohibitum,  24. 
"  murder  "  as  a  term  of  art,  278. 
non  compos  mentis,  51. 
nolo  contendere,  358. 
"  premeditation  "  defined,  104, 
pro  in/or  turn  inn,  25. 
qui  facit  per  alium,  facit  per  se,  42. 
se  defendendo,  183,  187. 
se  et  sua  defendendo,  23. 
voir  dire,  396. 

voluntas  reputabatur  pro  facto,  29. 
Wounds, 

causing  congestion  of  the  brain,  37. 

liability  for,  37. 
death  resulting  from  subsequently  contracted  disease,  39. 

relieved  from  liability  by,  39. 
erroneous  medical  treatment,  37,  38. 

defendant  responsible  for  physician's  want  of  skill,  38. 
Massachusetts  doctrine,  38. 
given  upon  high  seas,  48. 
jurisdiction  over,  48. 
improper  treatment,  37. 

does  not  relieve  from  liability,  37. 

defendant  responsible  for  physician's  want  of  skill,  38. 
Massachusetts  doctrine,  38. 
maltreatment  of,  37. 

does  not  relieve  from  liability,  37. 

defendant    responsible    for    physician's     skill    and    atten- 
tion, 38. 
Massachusetts  doctrine,  38. 
mistaken  medical  treatment,  37. 

does  not  relieve  from  liability  for,  37. 
,  defendant  responsible  for  skill,  care,  etc.,  of  physician,  38. 

Massachusetts  doctrine,  38. 
mortal  wound, 

killing  by  another  after  giving,  35. 

effect  of,  on  liability  for,  35,  36. 
liability  for,  although  person  would  have  died  from  other  causes, 

36. 
proof  necessary  to  convict,  36. 


650  HOMICIDE. 

Wounds —  Continued. 
upon  high  seas,  48. 

jurisdiction  over  offence,  48.     See  High  Seas. 
Writings  of  others,- 

adoption  of,  by  revohitionary  organization,  492. 
proof  of,  492.     See  Evidence. 


"^ 


